Reactions to PLoS Medicine Articles on Lethal Injection
The PLoS Medicine editors have received a lot of email about lethal injection since we published a research article finding that drugs used in executions may cause more suffering than expected.
It's no surprise that the death penalty is a matter of great interest, but we didn’t know the research article by Koniaris and our accompanying editorial would receive quite so much attention. The day after publication, Google News showed some three hundred links to stories about the article. It seemed that every major US daily, and many international ones, had either picked up a wire-service story or had written their own piece. It’s hard to say how many of those who wrote had actually read the article and considered the arguments of the editorial, and how many were writing in response to the broader news coverage.
Many messages were more scornful and disparaging than is usual for medical journal correspondence, but then the topic was an unusual one for a research article. We didn’t think it would be appropriate to include all of these messages as correspondence in PLoS Medicine, but thought our blog might be a good place to provide a sense of them.
In our editorial we expressed the view that “lethal injection is simply the latest in a long line of execution methods that have been found to be inhumane.” Some wrote to assert that painless execution should indeed be technically possible. As one physician put it:
“My suggestion would be to return to the Guillotine. The spinal nerves are severed immediately. There are many decades of empiric evidence with minimum malfunction and no complaints of botched executions.”
Another physician (whose response we did post) noted that he opposed the death penalty, but felt that arguments based on the method of execution were inadequate, because “Any qualified anesthesiologist could propose more reliable techniques. It is unreasonable to assert that a condemned person cannot be put to sleep painlessly, when tens of thousands of people are anesthetized every single day for surgery with modern fast-acting anesthetic drugs (propofol, in particular) that are far more suitable than the outmoded execution drug thiopental. Induction of surgical anesthesia does occasionally cause slight injection pain, so how then can it be “cruel and unusual” to use the same drug and method for the initial step in executions?”
Along similar lines, I noticed a letter from a veterinarian to a local paper noting that he had humanely put down hundreds of beloved cats, dogs, and horses over the years, and that it must be possible to do the same with humans.
We did indeed note in the editorial that “it is not our intention to encourage further research to ‘improve’ lethal injection” because “there is no humane way of forcibly killing someone.” Just to clarify, we didn’t mean painless. We meant humane, by the dictionary definition:
1. "having what are considered the best qualities of mankind; kind, tender, merciful, synmpathetic, etc. 2. Civilizing, humanizing. (Webster's New World Dicionary of the American Language, 2nd College Edition, 1980. )
The current online Oxford Compact Dictionary confirms that the definition of “humane” hasn’t changed much in 25 years: "Having or showing compassion or benevolence.”
Painless execution may be possible (although, as we noted, research to test that hypothesis would be unethical). But how can execution be humanizing or benevolent? As we also noted in the editorial, “an implicit goal … of imposing the death penalty is not rational but emotional: the desire for revenge.” The responses provide abundant evidence that, regrettably, we were right on the money. Here are four unedited examples:
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“I cannot believe that people actually care about an inmate suffering a little. Think of the suffering his victims and survivors are going through. If they wouldn't commit these crimes that are punishable by death we wouldn't have this discussion. They took the rights of others without any consideration, so why should they have any rights? Please get your head on straight, or maybe we should go to the old wild west form of justice: public lynchings which are quick or, even better, a firing squad.”
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“thats the trouble with todays bleeding heart agenda – the criminals have more rights than the victims of these heinous crimes. Its a sad world we live in where there is more compassion and sympathy for the criminal than for their victims – im sure this paper was written in such a biased light & each of the writers would be singing a different tune – had their family members been raped and killed – by some lowlife that gets to 'go to sleep' rather than face the wrath he really deserves for his actions.”
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IF someone killed your kid after raping them repeatedly, would you care if the SOB who did it died slowly and painfully? The answer- NO! If you are worried that someone who deserves to die is in pain, volunteer to trade places with him in the room. I'm sure that he (or she) would love that! If lethal injection is so bad, go back to public hanging, like we have here in Montana. It sure makes people think twice before committing a gruesome crime.
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“Why should these monsters get any kind of mercy. mass murderers, rapists, & child molestors should die in the most horrible ways emaginable, the same pain and phsychological damage that they caused should be inflicted upon them as they die. These animals should be thankful that they are getting this leathel injection because it does not even compare to what they have done to get the death penalty in the first place. There are far better things to study than if it is ethical and humane to use this 3 drug combo to kill these scums of the erath. So dont waste whatever money it is you people are wasting on this. And it better not be tax money because I do not want my tax money to fund such meaningless pesuits of knowledge. So study other things, these animals do not need your mercy.”
And so on. In disagreeing with our call to end the death penalty, these writers present the desire for revenge as the major justification for the death penalty. Indeed, most who wrote seemed to assume that taking a life in exchange for a life is so obviously reasonable that any further consideration of the matter is simply misguided.
I agree with some of these writers that killing by the state is nothing other than actual violence that human beings inflict on other human beings, and might as well be recognized as such. But I do not agree that repaying criminal violence with state-approved violence is the right solution.
Giving execution a veneer of medical anesthesia makes it convenient to overlook the fact that when we as a society inflict death –by whatever method– we tend to compound, rather than recognize, the anger and vengefulness that create the conditions for violent crime in the first place. Because rage and denial combine to perpetuate violence, it is the responsibility of physicians and medical journal editors, among others, to bring to light both the unwillingness of some to acknowledge violence and the furious demands of others to inflict it. This is not simply an exercise in compassion for those guilty of horrible crimes. When it comes to suffering and death that governments inflict in the name of decent people, execution doesn’t amount to even the tip of the iceberg.
Your initial and editorial and this follow-up are both excellent. The current debate over the ‘humanity’ of lethal-injection procedures is the exact reason many states who have a death row currently have suspended their executions. As of February, of the thirty-eight states that have the death penalty, executions were on hold in fifteen, including the huge death rows of California and Florida. The research you published greatly reinforces the correctness of these decisions. In California specifically, at one point a judge ruled to allow en execution if appropriate medical personnel could be brought in to observe the procedures – but none stepped forward – a testament to the political clarity and humanity of doctors throughout the state.
But what you’ve done best is actually pulled the mask off the whole operation and questioned what could possibly be ‘humane’ about any state execution. Not simply because further killing ultimately doesn’t benefit society or those close to the victim, but because the state is anything but a neutral entity in the process. As the PLoS editors pointed out in their initial editorial, many people have been exonerated from death row due to wrongful convictions (now 201 people in the US) – and many more after the fact, when it was too late. In fact, it appears the death penalty has benefited some people – namely many police chiefs, prosecutors, prison administrators and politicians who have staked their careers on ‘getting their man’ and looking ‘tough on crime’ through promoting the death penalty, even if the person executed was innocent – and more often than not, their ‘man’ was either poor, black, or both.
It’s time to end the death penalty and, despite the hate mail you recieved, public sentiment has been shifting in that direction for some time in the US.
Thanks again PLoS!
Although I agree that the principle of revenge is a morally abhorrent basis on which to predicate the institution of capital punishment, I feel that your pacifist stance is equally abhorrent. There are individuals who kill and destroy without conscience, and the community has the right to defend itself against them. Government sanctioned killing, whether through warfare, capital punishment, or law enforcement, is a tool of last resort, and it should be employed with the utmost reluctance and restraint, but nevertheless it is the obligation of all governments to apply the degree of force necessary to defend its citizens, up to and including killing. When and where killing is necessary is a matter of debate, but it is plain that some threats to innocent citizens can only be resisted with lethal force.
In my view, that is why capital punishment is necessary. Some criminals present a persistent and mortal threat to the safety of their communities and cannot be deterred from repeatedly killing or conspiring to kill by any means short of death. To wittingly fail to defend the lives of innocents from aggression when the means to protect them are available would be depraved and unconscionable.
Lethal Injection: Current Controversies Resolved
Dudley Sharp, Justice Matters, contact info, below
updated 5/11//07
Several issues have come up with regard to lethal injection.
Generally, they are:
1) The murderer experiencing pain during execution;
2) The ethics of medical professionals participating in executions; and
3) Proper training of execution personnel.
1) PAIN AND LETHAL INJECTION
The evidence, including the immediate autopsy of executed serial murderer/rapist Michael Ross, supports that there is no pain within the lethal injection process.
There is a concern that some inmates may be conscious, but paralyzed, during execution, because one of the three drugs used may have worn off, prior to death.
First, there is no evidence this has occurred. There is speculation.
Secondly, if properly administered, it cannot occur with the properties and amounts of the chemicals used and within the time frame of an execution.
Thirdly, no one has explained how the first drug could have worn off, within the time frame of execution. Or, how is it that the first drug was, somehow, improperly administered, but the second and third were not, when using the same lines and procedures?
An Associated Press reporter correctly stated that “there is little to support those claims except a few anecdotes of inmates gasping and convulsing and an article in the British medical journal Lancet.” (AP, “Death penalty foes attack lethal-injection drug”, 7/5/05)
The British Medical Journal, The Lancet, published an article critical of lethal injection (Volume 365, 4/16/05). A follow up article, by essential the same group of researchers, published a similar report in PLoS Medicine on 4/24/07.
The articles did not/could not identify one case where evidence existed than an inmate was conscious during execution.
The Lancet article identified 21 cases of execution where the level of “post mortem” (after death) sodium thiopental was below that used in surgery and, therefore, may suggest consciousness was possible.
A more accurate description would be all but impossible.
A “long after execution” post mortem measurement of sodium thiopental is very different from a moment of death measurement.
Dr. Lydia Conlay, chair of the department of anesthesiology, Baylor College of Medicine (Texas Medical Center, Houston) said the extrapolation of postmortem sodium thiopental levels in the blood to those at the time of execution is by no means a proven method. “I just don’t think we can draw any conclusions from (the Lancet study) , one way or the other.”
Actually, we can. The science is well known. Sodium thiopental is absorbed rapidly into the body. Long after execution blood testing of those levels means absolutely nothing with regard to the levels at the time of execution. Nothing.
The Lancet article did not dispute the obvious — for executions, the sodium thiopental is administered in dosages roughly 10-20 times the amount necessary for sedation unconsciousness during surgical procedures.
Unconsciousness occurs within the first 30 seconds of the injection/execution process. The injection of the three drugs takes from 4-5 minutes. Death usually occurs within 6-7 minutes and is pronounced within 8-10 minutes.
The researchers also failed to note the much lower probability (impossibility?) that the murderer could be conscious, while all three drugs are coursing through the veins, concurrently.
Despite the Lancet article’s presumptions and omissions, there is no scientific evidence that consciousness could occur with the amounts and methods of injecting those three chemicals within the execution period.
The AP article also stated that “They (death penalty opponents) also attack lethal injection by saying that the steps to complete it haven’t been reviewed by medical professionals.”
That is both deceptive and irrelevant.
The unchallenged reality is that medical professionals have both reviewed and implemented injection procedures for decades. The same procedures are used in executions. Criminal justice professionals have been trained in this application.
Does anyone not know this?
The chemicals used in lethal injection, as well as their individual and collective results, at the dosages used, are also well known by medical and pharmacology professionals. And this?
Dr. A. Jay Chapman, the former Oklahoma Medical Examiner, who created the protocol, consulted a toxicologist and two anesthesiologists. He states the obvious ” ‘ . . .it didn’t actually require much research because the three chemicals – a painkiller, a muscle-paralyzing agent and a heart-stopper – are well-known to physicians.’ ‘It is anesthetizing someone for a surgical procedure, but simply carried to an extreme.’ ‘If it is competently administered, there will be no question about this business of pain and suffering.’ “(“Lethal Injection Father Defends Creation”, Paul Ellias, Associated Press, 5/10/07)
Further, lethal injection is not a medical procedure, but the culmination of a judicial sentence carried out by criminal justice professionals, the result of which is intended as death, the outcome of every case.
The follow up research/article is “Lethal Injection for Execution: Chemical Asphyxiation?”(Public Library of Science (PLoS) Medicine, 4/24/07). Dr. Koniaris was an author in both this and the Lancet article.
The question mark from the title says it all.
From the Conclusion:
” . . . 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.” (Underline, quote and color change are mine, for emphasis)
In other words, the authors tell us they cannot prove this has ever happened. They are speculating.
Skip the speculation: Some Reality
From Hartford Courant, “Ross Autopsy Stirs Execution Debate—-Results Cited To Counter Talk Of Pre-Death Pain”, August 11, 2005
The below is a paraphrase of parts of that article, including some exact quotes.
Results of the autopsy done on serial killer Michael Ross are being cited by several prominent doctors to refute a highly publicized article that appeared in The Lancet, the British medical journal, in April, 2005.
Critics of the Lancet article say it does not account for postmortem redistribution of the anesthetic – thiopental. The redistribution, the critics say, accounts for the lower levels of thiopental on which Dr. Koniaris based his Lancet article conclusions that the levels of anesthetic were inadequate. The Ross autopsy results document this redistribution, bolstering the critics’ assertions.
Dr. H. Wayne Carver II, Connecticut’s chief medical examiner, was aware of the controversial Lancet article before performing the Ross autopsy. As a result, he took the additional step of drawing a sample of Ross’s blood 20 minutes after he was pronounced dead at 2:25 a.m. May 13. Carver took a subsequent sample during the autopsy, which began about 7 hours later, at 9:40 a.m.
The 1st sample showed a concentration of 29.6 milligrams per liter of thiopental; the second sample showed a concentration of 9.4 milligrams per liter. The 1st sample was drawn from Ross’ right femoral artery, and the second from his heart, which can account for some of the discrepancy. But Dr. Mark Heath, a New York anesthesiologist and one of the numerous doctors who have signed letters to The Lancet challenging the Koniaris article, said it clearly substantiates the postmortem redistribution of the thiopental.
Dr. Jonathan Groner, a pediatric surgeon from Ohio said he interviewed a number of forensic toxicologists before adopting the view that thiopental in a corpse leaves the blood and is absorbed by the fat, causing blood samples taken hours after death to be an unreliable marker of the levels of thiopental in the body at the time of death.
Groner described the Ross autopsy results as “a powerful refutation” of the Lancet-Koniaris study.
Dr. Ashraf Mozayani, a forensic toxicologist with the Harris County Medical Examiner’s Office in Texas, said the level of thiopental “drops quite a bit” after death. Even in the living, Mozayani said, thiopental levels decline rapidly after administration of the drug. She cited one study in which a patient was administered 400 milligrams of thiopental intravenously. After two minutes the concentration in the blood was measured at 28 milligrams, but dropped to 3 milligrams concentration 19 minutes after the anesthetic was injected.
Mozayani said the declining concentration of thiopental cited in the Ross autopsy report “make sense.”
On The Lancet article, she said, “I don’t think they have the whole story – the postmortem redistribution and all the other things they have to consider for postmortem testing.”
NOTE: I think that had and knew the whole story. They just didn’t include it in their report(s).
The Veterinary sidetrack
Opponents of the death penalty, as well as other uninformed or deceptive sources, have been stating that even vets do not use the paralytic agent in the euthanasia of animals. This is a perversion of the veterinary position, which actually provides support, however unintended, for the human execution process.
Some fact checking is in order — www(dot)avma.org/issues/animal_welfare/euthanasia.pdf
2. THE MEDICAL/ETHICAL DILEMMA
Medical groups cite that there is an ethical conflict for participation in the lethal injection process, because medical professionals have a requirement to “do no harm”.
Those ethical codes pertain to the medical profession, only, and to patients, only. Judicial execution is not part of the medical profession and death row inmates are not patients.
Doctors and nurses can be police and soldiers and can kill, when deemed appropriate, within those lines of duty and without violating the ethical codes of their medical profession. Similarly, medical professionals do not violate their codes of ethics, when acting as technical experts, for executions, in a criminal justice procedure.
Physicians are often part of double or triple blind studies where there is hope that the tested drugs may, someday, prove beneficial. The physicians and other researchers know that many patients, taking placebos or less effective drugs, will suffer more additional harm or death because they are not taking the subject drug or that the subject drug will actually harm or kill more patients than the placebo of other drugs used in the study.
Physicians knowingly harm individual patients, in direct contradiction to their “do no harm” oath.
For the greater good, those physicians sacrifice innocent, willing and brave patients. Of course, there have been medical experiments without consent and, even, today, they continue (“Critical Care Without Consent”, Washington Post, May 27, 2007; Page A01).
The greater good is irrelevant, from an ethical standpoint, if “Do no harm” means “do no harm”. Physicians knowingly make exceptions to their “do no harm” requirement, every day, within their profession, where that code actually does apply. And, they should.
The “do no harm” has no ethical effect in a non medical context, because this ethical requirement is for medical treatments, only, and for patients, only.
The acknowledged anti death penalty editors of The Public Library of Science (PLoS) Medicine agree. They write:
“Execution by lethal injection, even if it uses tools of intensive care such as intravenous tubing and beeping heart monitors, has the same relationship to medicine that an executioner’s axe has to surgery.” (“Lethal Injection Is Not Humane”, PLoS, 4/24/07)
The PLoS Medicine editors have made the same point many of us have been making – similar acts and similar equipment do not establish any equivalence or connection.
There is no connection between medicine and lethal injection, therefore there is no ethical prohibition for medical professionals to participate in executions.
To put it clearly: The execution of death row inmates is not equivalent or connected to the treatment of patients.
Is this a mystery?
Obviously, execution is not a medical treatment, but a criminal justice sanction. The basis for medical treatment is to improve the plight of the patient, for which the medical profession provides obvious and daily exceptions. The basis for execution is to carry out a criminal justice sentence where death is the sanction.
Justice, deterrence, retribution, just punishments, upholding the social contract, saving innocent life, etc., are all recognized as aspects of the death penalty, all dealing with the greater good.
Are murderers on death row willing participants? Of course. They willingly committed the crime and, therefore, willingly exposed themselves to the social contract of that jurisdiction.
Lethal injection is not a medical procedure. It is a criminal justice sanction authorized by law. Therefore, there is no ethical conflict with medical codes of conduct and medical personal participating in executions.
40,000 to 100,000 innocents die, every year, in the US because of medical misadventure or improper medical treatment. (1)
Do no harm? The doctor doth protest too much, methinks.
There is no proof of an innocent executed in the US since 1900.
3. PROPER TRAINING
In every state, there are hundreds or thousands of people trained for IV application of drugs or the taking of blood. Even many hard core drug addicts are proficient in IV application.
There may be only 1 or 2 times where personnel error may have led to problems in the lethal injection process. That is out of nearly 900 lethal injections in the US.
It appears that some 500-1000 innocent patients die, every year, in the US, due to some type of medical misadventure, with anesthesia. (1)
Do no harm? Glass house. Stones.
I am unaware of evidence that shows criminal justice professionals are more likely to commit some error in the lethal injection process than are medical professionals in IV application.
Furthermore, even with errors in lethal injection, those cases resulted in the death of the inmate – the intended outcome for the guilty murderer.
In the errors of medical professionals, we are speaking of a large number of deaths and injuries to innocent patients – the opposite of the intended outcome.
1) see “Deaths from Medical Misadventure”at
www(dot)wrongdiagnosis.com/m/medical_misadventure/deaths.htm
and
“Health Grades Quality Study: Patient Safety in American Hospitals, July 2004”
www.(dot)healthgrades.com/media/english/pdf/HG_Patient_Safety_Study_Final.pdf
originally written May, 2005. Updated as merited.
copyright 2005-2007
Dudley Sharp, Justice Matters
e-mail sharpjfa(at)aol.com, 713-622-5491
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O’Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
Pro death penalty sites
homicidesurvivors(dot)com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx
www(dot)dpinfo.com
www(dot)cjlf.org/deathpenalty/DPinformation.htm
www(dot)clarkprosecutor.org/html/links/dplinks.htm
joshmarquis(dot)blogspot.com/
www(dot)lexingtonprosecutor.com/death_penalty_debate.htm
www(dot)prodeathpenalty.com
www(dot)yesdeathpenalty.com/deathpenalty_contents.htm (Sweden)
www(dot)wesleylowe.com/cp.html
Permission for distribution of this document is approved as long as it is distributed in its entirety, without changes, inclusive of this statement.
Aiming to end a court-imposed moratorium on capital punishment in California, the Schwarzenegger administration Tuesday proposed new procedures to execute inmates by lethal injection, saying the changes “will result in the dignified end of life” for condemned inmates.
The state, in papers submitted in response to a court challenge to lethal injection, said officials would stick to the three-drug protocol that has been blamed for excruciatingly painful deaths of inmates nationwide. But officials said they would adjust the doses and train prison staff to ensure that inmates are thoroughly unconscious before the final painful drugs are given.
The state also plans to complete construction of a larger, better-lighted death chamber designed specifically for lethal injection executions, unlike the old facility, which was built in 1937 as the state’s gas chamber.
On Tuesday, Gov. Arnold Schwarzenegger’s legal affairs secretary, Andrea L. Hoch, and James Tilton, director of the California Department of Corrections and Rehabilitation, said the new protocol addressed all the issues U.S. District Judge Jeremy Fogel raised in finding that the state’s previous procedures violated the constitutional ban on cruel and unusual punishment.
And Schwarzenegger issued a statement saying, “I am committed to doing whatever it takes to ensure that the lethal injection process is constitutional so the will of the people is upheld.”
But lawyers for Michael Morales, the condemned killer whose challenge to lethal injection led to Fogel’s ruling, made it clear they will challenge the new protocol in court.
“The protocol still fails to conform to the standards for euthanasia of animals established by the American Veterinary Medical Assn. and does not meaningfully address the problems described by Judge Fogel” in his decision, said Washington, D.C., attorney Ginger Anders, one of Morales’ lawyers.
Morales has been on death row for a quarter of a century for the 1981 murder of Lodi teenager Terri Winchell. Fogel halted his execution 15 months ago, hours before he was to die, because of the inmate’s challenge. Executions have been on hold since then, while Fogel conducted a lengthy investigation into lethal injection procedures.
Fogel ruled in December that the state’s application of its death penalty law was broken, but said it could be fixed. He urged the governor to propose remedial action. California and three dozen other states use a three-drug cocktail. Opponents argue that officials often fail to properly sedate inmates with a barbiturate against the searing pain of the final heart-stopping chemical. The inmate’s reaction to the pain is masked by the intermediate drug, a paralytic, they say.
A national study published in the Public Library of Science journal PloS Medicine in April found that two of the three drugs used in lethal injection are not administered properly to reliably ensure a humane death.
State officials said Tuesday that they had considered switching to a single-chemical protocol. But they instead proposed to “substantially revise” the three-drug protocol.
They said the changes would “assure that the condemned inmate is rendered unconscious” by the first drug, a fast-acting barbiturate, and would remain unconscious during the injection of pancuronium bromide, which paralyzes the inmate, and potassium chloride, which causes cardiac arrest.
Under the new protocol, the state will administer less sodium thiopental — 3 grams rather than 5, more pancuronium bromide — 50 milligrams rather than 40, and less potassium chloride — 200 milliliters rather than 240. The state’s papers did not explain the reason for the dosage changes. Fogel had also faulted state officials for inconsistent and unreliable screening of execution team members; poorly trained staff; inconsistent and unreliable recordkeeping; improper mixing, preparation and administration of drugs; overcrowded conditions; and poorly designed facilities. He also chastised state personnel for a “pervasive lack of professionalism.”
On Tuesday, in documents to be submitted to the court and in a news conference, Tilton and Hoch said all those concerns were addressed in the new protocol. Tilton said the state was creating a 20-person lethal injection team at San Quentin State Prison. All members will be volunteers who have lodged no stress claims, have good disciplinary records and have not worked in the condemned-housing unit during the previous year.
All team members will undergo at least six training sessions before a scheduled execution. Part of the team will be assigned to security, another unit will inject drugs into the inmate and another will keep records.
State officials acknowledged Tuesday that earlier versions of the protocol “made no provisions for any objective assessment of consciousness of the condemned inmate following administration of the sodium thiopental, and prior to the administration of the other chemicals.”
Hoch said that the warden and a licensed vocational nurse would be in the death chamber with the inmate to make sure that the inmate was unconscious and that the execution was proceeding properly.
The protocol states there are reliable methods for assessing consciousness, including “talking to and gently shaking the inmate, as well as lightly brushing the eyelash.”
Deborah Denno, a Fordham University law professor and death penalty foe who has testified as an expert witness in other lethal injection cases, questioned whether a licensed vocational nurse is competent to assess a condemned inmate’s anesthetic depth.
In court documents, the state said that the use of only one chemical also has disadvantages: “Since no other jurisdiction uses only one chemical, the protocol remains untested. The use of only a barbiturate would likely result in involuntary muscle movement, with unpredictable consequences. Finally, the execution may take an extended period of time.”
The state said the advantages of retaining the three-drug protocol are that all of the other states use it and that its lethality “is unquestioned, and when properly administered, the protocol will result in a pain-free, dignified end of life for the condemned inmate.”
But Anders said the state’s continued use of the paralytic, pancuronium bromide, “will ensure that no one knows if the inmate regains consciousness after it is administered.”
The California corrections department started erecting a new death chamber this year, but halted work last month after legislators objected that they had not been properly informed about the project. Tilton said about 80% of the work has been done, but its completion has to be approved by the Legislature.
He also said that state officials had visited state prisons in Virginia, Oklahoma and Indiana, where lethal injections are performed, as well as the federal prison in Terre Haute, Ind., where Timothy McVeigh was executed, to help develop their proposal.
The federal lethal injection procedure, however, is also the subject of a court challenge.
Judge Fogel has scheduled a June 1 status conference in the Morales case.
It’s unclear when the judge will rule on the state’s plan, and until he does, there will be no executions in California.
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