Lethal Injection Protocols Research Articles

Examination of Decision Making and Botched Lethal Injection Executions in Texas

This research examines the influence of lethal injection drug shortages on Texas criminal justice officials’ decision to change the state’s three-drug lethal injection protocol to the use of pentobarbital as a single drug protocol, without judicial oversight. We analyze data collected under the three- and one-drug protocols from 1982 through 2020 and compare differences in the length of time the lethal injection took, and complications reported by media witnesses. Findings suggest a higher rate of botched executions under the one-drug protocol than the three-drug protocol. We discuss the role compounding pharmacies may play in our results, the impact of this work on the U.S. Supreme Court’s death penalty jurisprudence, and implications concerning the unilateral decision making by Texas state officials.

The role of anaesthesiologists in lethal injection: a call to action.

In 2006, Michael Angelo Morales, a California death-row inmate, was scheduled to be executed by lethal injection. 1 Gawande A When law and ethics collide–why physicians participate in executions. N Engl J Med. 2006; 354: 1221-1229 Crossref PubMed Scopus (68) Google Scholar Morales challenged the state's lethal injection protocol in court, arguing that administration of pharmaceutical drugs without oversight by personnel with medical expertise or training would violate his Eighth Amendment rights. 2 Michael Angelo Morales v Roderick Q Hickman. Number C 06 219 JF. District Court, Northern District of California, CA, USA. Feb 14, 2006. Google Scholar The basis of his claim was that the protocol created foreseeable and undue risk of excessive pain, given the potential for consciousness during drug administration. 2 Michael Angelo Morales v Roderick Q Hickman. Number C 06 219 JF. District Court, Northern District of California, CA, USA. Feb 14, 2006. Google Scholar The California protocol called for an injection of a three-drug cocktail: thiopental, a barbiturate intended to render the inmate unconscious; pancuronium, a neuromuscular blocking drug that induces paralysis and causes cessation of breathing; and potassium chloride, to induce cardiac arrest. 3 Schwarzenegger A Tilton JE State of California lethal injection protocol review. https://files.deathpenaltyinfo.org/legacy/files/pdf/CALethInject.pdfDate accessed: August 6, 2019 Google Scholar Morales argued that the potential for consciousness during the administration of pancuronium and potassium chloride constituted cruel and unusual punishment. 2 Michael Angelo Morales v Roderick Q Hickman. Number C 06 219 JF. District Court, Northern District of California, CA, USA. Feb 14, 2006. Google Scholar

Physician Participation in Lethal Injection

On April 1, 2019, in Bucklew v. Precythe, the United States Supreme Court rejected a Missouri death-row inmate’s claim that executing him by the State’s lethal injection protocol would violate the Eighth Amendment’s ban on “cruel and unusual punishment” because blood-filled tumors in his head, neck, and throat could rupture, causing him to choke and suffer “prolonged” and “excruciating pain.” In essence, the Court found that Bucklew failed to establish “a feasible and readily implemented alternative method” of execution because he provided so few facts about nitrogen gas, the alternative that Bucklew suggested. In its argument against Bucklew’s claim, the State emphasized that experienced medical personnel, including a board-certified anesthesiologist, would be utilized during the execution to ensure that Bucklew would not face a “substantial risk of severe pain.” Bucklew’s medical expert countered strongly with compelling evidence that Bucklew would suffer greatly. Bucklew is far from the first capital case to rely on physicians’ contributions in the execution process. Indeed, physicians have been participating in executions for more than a century. This participation is particularly troublesome given the wide range of unresolved problems created by lethal injection, including drug shortages and untested drugs and protocols. The American Medical Association and other medical organizations have turned a blind eye to this reality or they have blamed the legal system for the current state of affairs. This commentary contends that whatever moral or professional credibility the medical community fears it will lose by engaging in a discussion of physician involvement in lethal-injection executions is already imperiled by the increasingly apparent divergence between the community’s words and its actions.

How Would You Like to Die? Glossip v. Gross Deals Blow to Abolitionists

After capital punishment opponents’ pressure on drug suppliers reduced the lethal injection drug supply, Oklahoma began using midazolam, resulting in botched executions. Condemned inmates sought to stop use of this lethal injection protocol. In Glossip v. Gross, the U.S. Supreme Court found inmates failed to establish that such protocols entail a substantial risk of severe pain compared with available alternatives, undermining the supply side attack strategy and leaving inmates facing the possibility of an unnecessarily painful execution. This article places the Glossip decision within the context of method of execution jurisprudence and discusses implications for the ongoing battle over capital punishment.

The Emergence of Second-Generation Lethal Injection Protocols: A Brief History and Review.

The history of capital punishment in the United States is long and controversial. In many cases, lethal injection has brought medical personnel, ethically and professionally charged with preserving life, into the arena of assisting the state in taking life. U.S. Supreme Court decisions, including Baze v. Rees (2008) and Glossip v. Gross (2015), have evaluated and condoned lethal injection protocols. Despite the judicial validation of some midazolam-containing protocols, controversy exists about the level of unconsciousness provided due to the ceiling effects of the drug. Drug shortages, induced in part by manufacturers under pressure by death penalty opponents and governments opposed to capital punishment, have forced states to sometimes use creative means to obtain medications for use in lethal injection, even proposing to allow inmates to supply their own drugs for use in execution. Others have resorted to using compounding pharmacies and enacting tougher execution secrecy laws to protect the identities of those involved in the process. Professional organizations representing health care team members, including nursing, medicine, and pharmacy, among others, have roundly denounced the medicalization of capital punishment. Legal challenges continue to mount at all levels, leading to an uncertain future for lethal injection.

The Original Meaning of 'Cruel'

This Article demonstrates that the word “cruel” in the Cruel and Unusual Punishments Clause means “unjustly harsh,” not “motivated by cruel intent.” The word refers to the effect of the punishment, not the intent of the punisher. In prior articles, I have shown that the word “unusual” means “contrary to long usage,” and thus a punishment is cruel and unusual if its effects are unjustly harsh in light of longstanding prior practice.This Article solves several important problems plaguing the Supreme Court’s Eighth Amendment jurisprudence. First, it clarifies the Eighth Amendment’s intent requirement. To violate the Cruel and Unusual Punishments Clause, some government official must possess intent to punish but not necessarily intent to punish cruelly. Second, it demonstrates how to determine whether a given punishment is so harsh that it violates the Eighth Amendment. The question is not whether a punishment is unjustly harsh in the abstract but whether it is unjustly harsh in comparison to the traditional punishment practices it has replaced. Third, it shows how to sort between those unintended effects of punishment that may properly be considered part of the punishment and those that may not. If a given punishment heightens the risk of severe, unjustified harm significantly beyond the baseline risk established by longstanding prior practice, it is cruel and unusual. Finally, this Article establishes that the core purpose of the Cruel and Unusual Punishments Clause is to prevent unjust suffering, not the coarsening of public sensibilities. Historically, governmental efforts to protect public sensibilities by making punishment less transparent have increased the risk that the offender will experience undetected cruel suffering. When the government undertakes such efforts, it should bear the burden to show that they do not significantly increase this risk.The original meaning of the Cruel and Unusual Punishments Clause calls into question the constitutionality of several current punishment practices, including lengthy prison sentences for certain offenses, long-term solitary confinement, the three-drug lethal injection protocol, and certain prison conditions, to name a few.

Lethal Injection in Uncharted Territory: The Need to Ensure the Humanity of Current Death Penalty Practices

When lethal injection was first legalized in the late 1970s, many people viewed it as safe, reliable, and humane. Today, however, lethal injection does not always perform as promised. Due to difficulties with sourcing lethal injection drugs, states are utilizing untested lethal injection protocols, with little knowledge or experience to guide them. This article argues that lethal injection reform requires regulation similar to that for human subject research, and that the practice of utilizing untested lethal injection methods comes very close to falling under the federal statutory definition of “human subject research“ formulated in the Common Rule. This article argues further that even if one decides that it does not, the practice of lethal injection today is the type of conduct that the human subject research regulations were designed to correct. Moreover, society has an interest in ensuring that executions are conducted in a way that reduces pain and suffering to the lowest extent possible. As such, lethal injection ought to receive further review and oversight to ensure that it comports with reasonable notions of humanity.

What You Don't Know Will Kill You: A First Amendment Challenge to Lethal Injection Secrecy

The conventional cocktail of drugs used in lethal injection executions has been sodium thiopental, pancuronium bromide, and potassium chloride. However, in 2011, the sole manufacturer of sodium thiopental in the United States, Hospira, Inc., restricted the distribution of the drug to prevent it from being used in executions. In response, states are now experimenting with drugs like pentobarbital, midazolam and hydro-morphone in executions. Furthermore, several states have obtained, or intend to obtain, death penalty drugs from compounding pharmacies, entities which have recently come under intense scrutiny for their lack of regulatory oversight and production of sub-standard drugs. The most alarming development, however, is the secrecy that has accompanied lethal injection executions in recent years. For example, some states, like Georgia, have passed statutes that make information about the source of the drugs and the professional qualifications of the lethal injection participants a confidential state secret. Understandably, much discussion about lethal injection drugs and states’ lethal injection protocols is focused on the Eighth Amendment and Due Process consequences for the condemned. This Note, however, analyzes a particular injection protocols is focused on the Eighth Amendment and Due Process implications, but this note will argue that the First Amendment provides a qualified right of access to information about lethal injection drugs, lethal injection secrecy statute under the First Amendment and and concludes that the public has a qualified right of access to information about lethal injection drugs under the First Amendment.

Drugs and the Death Penalty

In October 2013, Missouri officials abandoned a plan to execute a convicted murderer using a novel method—an injection of propofol. The name of this drug became a household word after propofol played a role in singer Michael Jackson's death, but this has been a popular therapeutic drug for many years. Clinicians use it in intensive care, surgery, and common procedures like colonoscopy. After deciding to halt the execution, Missouri governor Jay Nixon told corrections officials to come up with a different lethal injection protocol. But that was not a simple assignment. Missouri had proposed using propofol because officials had faced barriers to obtaining the drugs previously used for executions. Corrections officials in death penalty states are finding it harder to secure drugs for lethal injection.

Physician Participation in Executions, the Morality of Capital Punishment, and the Practical Implications of Their Relationship

Evidence that some executed prisoners suffered excruciating pain has reinvigorated the ethical debate about physician participation in executions. In widely publicized litigation, death row inmates argue that participation of anesthesiologists in their execution is constitutionally required to minimize the risk of unnecessary suffering. For many years, commentators supported the ethical ban on physician participation reflected in codes of professional medical organizations. However, a recent wave of scholarship concurs with inmate advocates, urging the law to require or permit physician participation. Both the anti- and pro-physician-participation literature share a common premise: the ethics of physician participation should be analyzed independently from the moral status of capital punishment. This considerable literature implausibly divorces the ethics of physician participation from the moral status of the death penalty. Any ethical position on physician involvement requires some judgment about the moral status of capital punishment. The article examines anti- and pro-participation arguments to show that each one either is unpersuasive without discussion of the death penalty's moral status or implicitly assumes a view on the social worth of the death penalty. The article then articulates the practical implications of its arguments for both lawmakers and professional medical organizations.

The Plight of Ethics

Since Kant, ethics has been synonymous with moral law, grounded in Reason. As Kant’s heirs, we are still grappling with a tension he sought to resolve through his appeal to a rational God, namely, between ethics and politics. “Politics says, ‘Be ye wise as serpents,’” remarks Kant: “Morality adds (as a limiting condition) ‘and guileless as doves’” (1795, 338). For Kant, both the serpent of politics and the dove of ethics are bound by the same moral duty that has its source in the freedom of our sovereign rational will. The perfection of this good will is possible not as individuals but only from the perspective of what Kant calls “Universal History from a Cosmopolitan Point of View,” which it turns out is a view from the cosmos, more specifically, from the perspective of the “dwellers from other planets” whom Kant imagines viewing us from their own place in the universe (1784, n. 2). As we know, Kant insists that the concept of duty cannot be in conflict with doing our duty—or that ought implies can: “It is patently absurd, having granted this concept of duty its authority, to want to say that one nevertheless cannot do it. For in that case this concept would of itself drop out of morals. . . . [H]ence, there can be no conflict of politics as doctrine of right put into practice, with morals, as theoretical doctrine of right” (1795, 338). But what if the reverse were true? What if ought implies cannot? What if our obligations always outstrip our intentions? What if the sovereign will is fundamentally beholden both to other people and to the Other The Plight of Ethics

Lethal Injection as a Component of a Therapeutics Toxicology Module

To create and implement a required module that addresses both the clinical and ethical issues surrounding the use of lethal injection as a means of capital punishment. As a component of a pharmacotherapeutics module in toxicology, pharmacy students were introduced to ethical and clinical considerations and controversies with the use of drugs as a means of capital punishment. Basic information was provided on the history of capital punishment and the origins of lethal injection. Pharmacotherapeutic limitations and challenges were presented in the context of clinical and ethical dilemmas. Instructed material was assessed using block course examinations that had both objective and subjective components. Students were asked to synthesize information by both purposing a lethal injection reversal protocol and by acting as consults in the fictional design of more effective lethal injection protocols. Students provided formative and summative evaluations of the instruction through regular student liaison meetings and summative course evaluations. Lethal injection as a means of capital punishment in the United States is a controversial and ethically challenging topic on which pharmacists may be consulted and therefore should be knowledgeable about. Students positively evaluated this lethal injection module, which covered multiple clinical and ethical issues.

Issues Surrounding Lethal Injection as a Means of Capital Punishment

Lethal injection as a method of state-sanctioned capital punishment was initially proposed in the United States in 1977 and used for the first time in 1982. Most lethal injection protocols use a sequential drug combination of sodium thiopental, pancuronium bromide, and potassium chloride. Lethal injection was originally introduced as a more humane form of execution compared with existing mechanical methods such as electrocution, toxic gassing, hanging, or firing squad. Lethal injection has not, however, been without controversy. Several states are considering whether lethal injection meets constitutional scrutiny forbidding cruel and unusual punishment. Recently in the case of Ralph Baze and Thomas C. Bowling, Petitioners, v John D. Rees, Commissioner, Kentucky Department of Corrections et al, the United States Supreme Court upheld the constitutionality of the lethal injection protocol as carried out in the Commonwealth of Kentucky. Most of the debate has surrounded the dosing and procedures used in lethal injection and whether the drug combinations and measures for administering the drugs truly produce a timely, pain-free, and fail-safe death. Many have also raised issues regarding the "medicalization" of execution and the ethics of health care professionals' participation in any part of the lethal injection process. As a result of all these issues, the future of lethal injection as a means of execution in the United States is under significant scrutiny. Outcomes of ongoing legislative and judicial reviews might result in cessation of lethal injection in totality or in alterations involving specific drug combinations or administration procedures.

Ethical Implications of Modifying Lethal Injection Protocols

Teresa Zimmers and colleagues argue that it is difficult to conceive how lethal injection research activities could be carried out in a fashion consistent with ethical norms.

Perspective Roundtable: Lethal Injection

To the Editor: I was deeply disturbed by the discussion, led by Gawande, on physicians and executions (Jan. 31 issue).1 Except for Truog's principled objection to capital punishment on moral grounds, it seems as if the participants were missing the point of the argument over the question of physician involvement in the legalized killing of human beings. As Denno notes, the adoption of the lethal-injection protocol 31 years ago as the preferred method for execution has led to the medicalization of a procedure that has been abandoned by all but a few modern industrialized nations. An examination of the history . . .

Physicians and Execution

This spring the U.S. Supreme Court in Baze v. Rees 1 will rule on the constitutionality of the three-drug regimen currently used for lethal injection in most state executions. The Eighth Amendment to the U.S. Constitution prohibits punishment that is “cruel and unusual.” The central question before the Court in Baze is whether the use of sodium thiopental, pancuronium bromide, and potassium chloride violates that constitutional prohibition. The heinous nature of the crimes committed by Ralph Baze and his coplaintiff, Thomas Bowling, is not in doubt. What the Court will decide is whether the current lethal-injection protocol does or does not . . .

Lethal Injections: Medicine and Research

Lethal Injections:Medicine and Research Jeff Stryker (bio) For the first time in more than a hundred years, the U.S. Supreme Court has agreed to hear a case involving the constitutionality of a particular method of execution—lethal injection. The case involves Kentucky death row inmates Ralph Baze and Thomas Clyde Bowling, Jr., who sued in 2004 to challenge the method nearly all death penalty states have adopted: a three-drug cocktail intended first to render the inmate unconscious, then to paralyze and stop his breathing, and finally to stop his heart. Twenty-five years of experience reveals that execution by lethal injection is not the quick or painless event originally envisioned, but frequently a drawn-out affair during which the paralyzing drugs may mask excruciating pain. The debate about lethal injection has centered on whether it is a medical procedure. At least eight states explicitly maintain that it does not constitute medical practice. Last March, a North Carolina superior court judge ruled that the state's medical board did not have the authority to keep doctors from participating because an execution is "not a medical event or medical procedure." The problem is that lethal injections look an awful lot like medical procedures, what with gurneys and syringes and IVs and drugs (albeit far off-label). New Jersey's death penalty statute refers to the lethal chemicals as "execution medications." Wasn't lethal injection supposed to be clinical—isn't that why it's a moral advance over electrocution, hanging, and poison gas? Maybe, however, lethal injection is more like research—a nationwide, government-sponsored clinical trial gone horribly awry. In 1977, when Oklahoma became the first state to recognize lethal injection by statute, Oklahoma legislators turned to A. Jay Chapman, then the state's chief medical examiner, to develop a lethal injection protocol. At first Chapman demurred, saying he "was an expert in dead bodies and not an expert in getting them that way." But he eventually agreed to help, and when he did he jumped right in. "I didn't do any research. I just knew from having been placed under anesthesia myself, what we needed," he told researchers from Human Rights Watch. Despite the casual approach, the protocol was rapidly adopted by virtually all death penalty states. Physicians' reluctance to participate in lethal injection protocols has been one of the problems in implementing them. Lay executioners have often lacked the training or experience to place IVs in the arms of sweating, writhing inmates whose veins may be compromised by years of injection drug use. Some had never held a syringe before the execution. One prison warden didn't realize that mixing the drugs together would create a white sludge that couldn't be injected. Ohio revised its protocol after one execution took ninety minutes, only to have a subsequent execution take two hours. But some physician executioners have been no better. Missouri doctor Alan Doerhoff, who supervised more than fifty executions, had been a defendant in more than twenty malpractice suits and had his privileges revoked at two hospitals. Court testimony revealed his problem with drug dosages: "[I] am dyslexic . . . so it's not unusual for me to make mistakes." Executions have been compromised in other ways, too. Many executions take place in the middle of the night in poorly lit rooms, forcing some executioners to inject the drugs by flashlight. A federal judge recently faulted California's Corrections Department for "lack of meaningful training, supervision and oversight of the execution team," "inconsistent and unreliable record-keeping," and "inadequate lighting, overcrowded conditions, and poorly designed facilities." If lethal injection were any other government-sponsored clinical trial, a Data Safety Monitoring Board would have shut it down years ago. But there is no DSMB for clinical trials of lethal injection: no government agencies or entities have embraced responsibility for how executions are carried out. Now, perhaps, the government and the wider public will have at long last an opportunity to take a hard look the nation's ongoing clinical experiment with lethal execution. It may be time to halt the trial. [End Page c3] Jeff Stryker Jeff Stryker is a Connecticut writer specializing in health policy and...

Lethal Injection for Execution: Chemical Asphyxiation?

BackgroundLethal injection for execution was conceived as a comparatively humane alternative to electrocution or cyanide gas. The current protocols are based on one improvised by a medical examiner and an anesthesiologist in Oklahoma and are practiced on an ad hoc basis at the discretion of prison personnel. Each drug used, the ultrashort-acting barbiturate thiopental, the neuromuscular blocker pancuronium bromide, and the electrolyte potassium chloride, was expected to be lethal alone, while the combination was intended to produce anesthesia then death due to respiratory and cardiac arrest. We sought to determine whether the current drug regimen results in death in the manner intended.Methods and FindingsWe analyzed data from two US states that release information on executions, North Carolina and California, as well as the published clinical, laboratory, and veterinary animal experience. Execution outcomes from North Carolina and California together with interspecies dosage scaling of thiopental effects suggest that in the current practice of lethal injection, thiopental might not be fatal and might be insufficient to induce surgical anesthesia for the duration of the execution. Furthermore, evidence from North Carolina, California, and Virginia indicates that potassium chloride in lethal injection does not reliably induce cardiac arrest.ConclusionsWe were able to analyze only a limited number of executions. However, our findings suggest that current lethal injection protocols may not reliably effect death through the mechanisms intended, indicating a failure of design and implementation. If thiopental and potassium chloride fail to cause anesthesia and cardiac arrest, potentially aware inmates could die through pancuronium-induced asphyxiation. Thus the conventional view of lethal injection leading to an invariably peaceful and painless death is questionable.

Physician participation in lethal injection executions

Lethal injection has come under fire as less than the peaceful, painless death it appears. Reevaluation of the process has sparked examination of the role of doctors in state-sponsored executions. Physicians helped design the lethal injection protocol. Seventeen death penalty states require physician involvement and all practicing jurisdictions employ medical personnel. Doctors have signed death warrants, rendered inmates competent, provided intravenous access, monitored vital signs, administered lethal injections and declared death. Remarkably, lethal injections are administered remotely and neither physicians nor other execution personnel assess depth of anesthesia prior to injection of the painful lethal drugs. Recently physicians have helped precipitate an unprecedented public and judicial review of lethal injection through expert testimony in litigation and by publishing evidence of potential awareness in execution. In response, judges have ordered protocol modifications to extend further the tools and expertise of medicine into the execution chamber in order to ensure anesthesia. Physician involvement created and perpetuates the seriously flawed protocol of lethal injection. Physicians and particularly anesthesiologists now have the opportunity to redress the mistakes of the past, and inform the growing debate over whether and potentially how medicine should be used to kill.