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January 31, 2008

Baze v Rees and the Future of Lethal Injection

The Supreme Court just heard a case challenging aspects of the way states administer lethal injection. There is only a slim chance the Court's decision will have far-reaching implications, but it is an opportunity to peek into the process that apparently would be illegal to use to euthanize an animal in Kentucky (where the case originated). So, if you put you dog or cat to sleep using the combination of drugs Kentucky uses on condemned men, that would be illegal in Kentucky.

On the other hand, Kentucky has only done 1 execution and there was not a problem. So the case involves potential problems with the execution protocol, focusing on concerns about administration of the drugs. For example, during oral argument, Justice Stevens forced the concession that if the protocol was followed, there would be no case. But he was also deeply disturbed that one of the drugs in the mix is given to paralyze the inmate but does nothing to bring about death; it prevents contortions and other signs that might be disturbing to witnesses and supposedly contributes to the 'dignity' of the execution. But if the first drug - a pain killer what quickly wears off - is not given in a high enough dose, then the inmate would experience severe pain from the second two drugs. 

As a quick review: The first drug is sodium thiopental, a "fast-acting barbiturate" that makes the inmate unconscious. The second drug is pancuronium bromide, which causes paralysis and stops muscular movement.  The third drug is potassium chloride, which causes cardiac arrest. The sodium thiopental is fast-acting and fast-wearing off, so if the dose is not high enough, the condemned will feel both burning from the other drugs being injected and a "chemical asphyxiation" (choking, etc). But because of the pancuronium bromide, the condemned is paralyzed and unable to show pain. For this reason, the veterinarians do not use it and argue they can more closely monitor the euthanasia of animals.

It seems like the problem should be easy to fix by drawing on doctors to come up with the right dosage and mix to do the job right. But the American Medical Association ethics prohibit doctors being involved in any way. Medical ethics call for doing no harm and require informed consent for medical procedures or specific directives for withdrawing care (and letting the underlying disease cause death). Having doctors participate in executions might also undermine public confidence in medicine, so the American Society of Anesthesiologists has a brief telling the Court that there are problems but they can't help - it is not a health issue or a medical problem.   

So, fixing the problems represents a problem. So does keeping the present system. And the case itself seems to have an inadequate basis for the Court to raise some issues it might want to hear (i.e. alternate drugs and combinations). Finally, the Court has stayed all lethal injections pending the decision here, which means that sending the case back for additional argument would effectively put a moratorium on executions for the near future. Declaring lethal injections unconstitutional until further study would mean going back to electrocutions, maybe even a hanging or firing squad. (Justice Scalia sees no problem with the current system, so there is part of the Court that wants to vote against the inmates and resolve the uncertainty solidly in favor of the present system.)

Welcome to the American death penalty, 2008.

For more information, the following current resources are available: 

Background brief from Cornell Law School; Berkeley Law School "resource kit" on the case; Supreme Court wiki materials.

Transcript of oral argument (note on p 29: the state has practiced and done the execution drill 100 times, but only executed 1 inmate. And people ask why the death penalty is more expensive than life in prison!) The Oyez project has an audio file for those who want to listen to oral argument plus the full transcript.

Links to all briefs in the case (Berkeley Law School/lethalinjection.org) While all the briefs are interesting in some way, I'd suggest the Brief of the American Society of Anesthesiologists (filed "in support of neither party") and the brief by the veterinarians (filed in support of the condemned). The Brief of Critical Care Providers and Clinical Ethicists is quite detailed about pancuronium bromide and filed on behalf of the condemned. [There's also a .pdf summary of all the briefs.]

Sentencing Law Blog (written by a law prof) has background on this case, other challenges to lethal injection and will do a better job keeping current than I will). Prof Berman also has an 8 minute podcast.

Observations Regarding Lethal Injection, by the President of the American Society of Anesthesiologists (30 June 2006). Good brief summary of ethical issues, and part of what I found interesting:

Even more troubling to me is the Missouri court’s move to require an environment more like an “operating room”. I am concerned because anesthesiologists actually have more of a reason not to be involved than other physicians. The more the execution looks like an anesthetic, the less comfortable patients are likely to be with anesthesia. Surgery is already a frightening time and one in which patients need to trust their anesthesiologist. The last thing patients need is to equate the O.R. with a death chamber, to equate anesthetic drugs with death drugs, or to have in their subconscious the specter of the anesthesiologist as an executioner.

Lethal Injection for Execution: Chemical Asphyxiation?  Article in the peer-reviewed Public Library of Medicine journal.

If that's not enough, the Supreme Court wiki has links to more news articles and blogs.  

Listening to



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