|PAINLESS?: This California Department
of Corrections photograph, taken in January 1996, shows the lethal Injection
table in the execution chamber at San Quentin Prison. (Associated Press.
A flurry of litigation challenging the constitutionality of lethal
injection has placed a spotlight on growing evidence that condemned inmates
may not be properly anesthetized and therefore experience excruciating pain
Although it has become the predominant method of execution around the country,
lethal injection was initially adopted three decades ago without scientific
or medical studies, on the recommendation of an Oklahoma state legislator who
wanted a more humane procedure.
Since then, objections have arisen in many of the 37 other states that adapted
Oklahoma's procedures, including California, where a federal judge has scheduled
a two-day hearing next week on altering or even eliminating the state's lethal
So far this year, executions have been delayed in California, Florida, Maryland
and Missouri — and in three federal cases — because of litigation
challenging the use of lethal injections. Cases from Kentucky, Louisiana and
Tennessee are pending, and unsuccessful challenges have been waged in Indiana,
North Carolina, Ohio, Oklahoma and Texas.
Although it offends some death penalty proponents that the state is obliged
to limit inmates' suffering during execution, the Supreme Court in its 1976
decision reinstating the death penalty cautioned that officials must avoid "the
unnecessary and wanton infliction of pain." The problem with the three-stage
lethal injection drug procedure is that it may mask rather than prevent pain,
The first drug administered, the sedative sodium thiopental, is meant to deaden
pain, the second, a paralytic, to immobilize the prisoner and the third, potassium
chloride, to stop the heart.
However, sedative dosages, especially as administered by untrained prison personnel,
have been found inadequate to anesthetize inmates, according to testimony in
some of the cases. And the paralytic prevents them from expressing the intense
pain of the heart-stopping chemical, physicians say.
In a study to be released today, Human Rights Watch reported on more than a
dozen executions in which inmates appeared to suffer.
For example, in North Carolina in 2003, a prisoner started to convulse, sat
up and gagged during his execution. He appeared to be choking and his arms seemed
to struggle under the sheet, the report said.
In a 2001 execution, again in North Carolina, an inmate appeared to lose consciousness
and then began convulsing and opened his eyes, the report said. A witness said
the inmate tried to catch his breath as his chest heaved.
Earlier this year, lawyers for a condemned inmate in California presented evidence
from six recent California executions in which the inmates were still breathing
minutes after receiving massive doses of anesthetic, a possible sign that the
drug was not working as intended.
The legal assault on lethal injection has been building for several years.
A Human Rights Watch report, entitled "So Long as They Die," highlights
admissions from prison officials in several states that no medical professionals
were involved in developing their lethal injection procedures and that prison
personnel are simply not versed in administering drugs.
For example, when asked in a 2003 court hearing about what considerations went
into the development of Louisiana's lethal injection protocol, Annette Viator,
former chief counsel for the state penitentiary, said, "The only thing
that mattered was that the guy ended up dead." Asked how the state chose
the chemicals it used, Donald Courts, the pharmacy director at the prison, said,
"it wasn't a medical decision. It was based on the other states that had
all used a similar dose."
Similarly, a judge in Kentucky noted last year that officials there "did
not conduct any independent scientific or medical studies or consult any medical
professionals concerning the drugs and dosage amounts to be injected into the
condemned. Kentucky appears to be no different from any other state."
Dr. Jay Chapman, the former Oklahoma medical examiner who played a key role
in developing the original lethal injection procedure, told a Human Rights Watch
researcher, "I never knew we would have complete idiots injecting these
drugs. Which we seem to have."
Critics say the only way to ensure the sedative dosage is adequate is to have
trained medical personnel on hand to administer the drug and monitor its levels.
That, however, would violate the canons of medical ethics forbidding doctors,
nurses and other medical professionals from participating in a killing.
"There are smarter drug cocktails to use where you have less concern [about
suffering], but the problem is compounded by people who have no idea what they
are doing," said Dr. Leonidas Koniaris, a University of Miami physician
who has done research on lethal injections.
As an alternative, critics have suggested shifting to an overdose of a single
sedative. Dr. Mark Dershwitz, a professor of anesthesiology at the University
of Massachusetts Medical Center, who has testified on behalf of several states
defending their lethal injection procedures, told Human Rights Watch that if
a large dose of pentobarbital were used it certainly would kill an inmate but
that it might take "more than half an hour. Everyone involved will have
to wait a very long time for the heart to stop."
Dershwitz said no state official had decided to switch, even after hearing
that pentobarbital would be less painful. Asked why, the report's coauthors
Jamie Fellner and Sarah Tofte quoted Dershwitz as follows: "It's not about
the prisoner. It's about public policy. It's about the audience [at the execution]
and prison personnel who have to carry out the execution. It would be hard for
everybody to have to sit and wait for the EKG activity to cease so they can
declare the prisoner dead."
U.S. District Judge Jeremy Fogel will conduct a two-day hearing on California's
procedure beginning May 2. In late February, California officials delayed Michael
A. Morales' execution after saying that they could not get a licensed medical
professional to inject the lethal chemicals as Fogel had ordered. Morales is
on death row for the 1981 murder of a Lodi high school student.
No court has found lethal injection unconstitutional. The U.S. Supreme Court
has permitted some delays, but allowed other lethal injection executions to
go forward, including that of Willie Brown Jr. in North Carolina on Friday.
A federal judge initially blocked Brown's execution for the 1983 slaying of
a convenience store clerk. But he relented after prison officials agreed to
use a bispectral index monitor, a device the state said could monitor Brown's
level of consciousness.
Defense anesthesiology experts warned that the machine was useless in the absence
of trained professionals who could intervene if Brown awoke, but the judge disagreed.
Dr. Mark Heath, an assistant professor of clinical anesthesiology at Columbia
University in New York, said in a declaration submitted in the Morales case
that California's "selection of potassium chloride to cause cardiac arrest
needlessly increases the risk that a prisoner will experience excruciating pain
prior to execution."
Last October, the American Society of Anesthesiologists issued an advisory
warning that the risk of experiencing awareness during surgery increases when
the patient has a history of substance abuse and when the anesthesia is administered
intravenously, an action noted in the Human Rights Watch report.
Anesthesia is administered intravenously during executions, and many condemned
inmates have histories of drug use. Surgery patients who received neuromuscular
blocking agents with inadequate anesthesia have told of extreme suffering while
being unable to alert the anesthesiologist, according to court testimony in
a lethal injection case in Louisiana.
In a brief submitted to the U.S. Supreme Court last week, Tennessee physicians
wrote that "achieving and maintaining an appropriate anesthetic depth is
an extraordinarily complex endeavor that requires specialized training, procedures
Physicians already are involved in executions, but mostly on the periphery.
In California, a physician must fit a heart monitor on the condemned prisoner
and check its readings, according to Human Rights Watch. Twenty-eight states
require a physician to determine or pronounce death during an execution, the
Attorneys for the state have steadfastly maintained that the amount of the
sedative sodium thiopental administered by death row personnel at San Quentin
State Prison will quickly render an inmate unconscious and that the inmate will
remain in that condition while the other drugs are delivered.
Since Morales' execution was stayed in late February, California has changed
its protocol slightly. Attorneys for the state maintain that they are acting
well within the bounds of the law.
But Heath said the state's procedures don't even meet guidelines set by the
American Veterinary Medical Assn. for the euthanasia of animals.
At least 30 states ban the use of paralytics in animal euthanasia, and the
veterinary association says using a neuromuscular blocking drug with an anesthetic
is unacceptable for animals.
"They are using '70s technology for animals 35 years later in people,
and the vets have moved away from those protocols," Koniaris said.
Dr. Willie Reed, one of the authors of a veterinary association study on euthanasia,
said Michigan State University's veterinary clinic euthanizes animals with pentobarbital,
a long-lasting sedative. The dosage is adjusted for the weight of the animal.
Doctors say the drug would probably work just as effectively in humans, but
medical ethics prevent them from proposing a means of execution, even if it
is more humane than the process currently used.
Contrary to the position taken by Dershwitz, the anesthesiology professor,
some physicians and veterinarians say pentobarbital's effects are rapid.
"The animal dies almost instantaneously, within a few seconds of the injection,
probably less than a minute," said Reed, director of a veterinary research
center at the university. "It is used on cattle every week."
The 65-page Human Rights Watch report, "So Long as They Die: Lethal
Injections in the United States," can be read at this link.