"The simplest [execution] I know of is the guillotine. And I'm not at all opposed to bringing it back. The person's head is cut off and that's the end of it," said Jay Chapman. Chapman is the creator of the most commonly used lethal injection protocol, which he concocted in the late 1970s. This lethal recipe was adopted by 37 states.
Chapman's protocol called for three drugs: sodium thiopental, a sedative; pancuronium bromide, a paralytic agent; and to stop the heart, potassium chloride. However, in the last few years, manufacturers have pulled away from selling these drugs to states for the purpose of lethal injection. Sodium thiopental, the key sedative in the protocol, has become virtually unavailable.
The last manufacturer of sodium thiopental in the United States stopped producing it in 2011. The European Union banned export of it all together, and India has banned its sale. While some states attempted to stockpile the drug before the bans, sodium thiopental has a shelf life of only four years, with expirations fast approaching in 2015.
Suddenly, states were left with prisoners on death row, and no way to kill them. They had to reinvent the lethal injection.
On July 23, convicted murdered Joseph Wood was executed by the state of Arizona. His execution took almost two hours, involving fifteen doses of an experimental drug combination. Witnesses watched as he gagged and choked for the majority of the two hours, his opioid receptors filling with hydromorphone and midazolam.
Before his execution, Wood's lawyers petitioned the state of Arizona for information about the experimental drug protocol he would be killed with. They wanted to know what, exactly, would end their client's life, and how it had been created.
Dale Baich, Wood's attorney, spoke to The Wire about that process. "Prior to Mr. Wood's execution, we asked the Department of Corrections for information about the manufacturer of the drugs, the national drug code numbers and the lot numbers. We also asked for the qualifications of the execution team members who would be mixing the drugs. We also asked for information about how the state came up with the formula." While the 9th Circuit Court agreed that this information should be disclosed and issued a stay of execution, the U.S. Supreme Court vacated that ruling, allowing Wood to be put to death.
After Wood was killed, the recipe of the lethal injection cocktail, also know as a protocol, were released to the public. The names of the chemists, compounding pharmacy, and researchers used by the state of Arizona were not — nor do they legally have to be. An executing state is not legally required to explain where their lethal protocol came from, or who helped create it.
As Baich investigated his client's execution, he was able to determine that the state of Arizona used findings from a recent Ohio case. Dennis McGuire was found guilty of brutally murdering and raping a young woman and put on death row. The state of Ohio was seeking a new lethal injection protocol, and turned to experts to help with the formula. Baich provided The Wire with the expert reports and deposition transcripts used in the Ohio case, in which Dr. David Waisel and Dr. Mark Dershwitz, two anesthesiologists, were consulted.
Photo provided by the Ohio Department of Rehabilitation and Correction shows Dennis McGuire. (AP Photo)
The two doctors were called as expert witnesses. Both had extensive anesthetic knowledge and impressive educations, yet their conclusions differed. Dr. Waisel believed Ohio’s lethal injection protocol, 10 mg of midazolam and 40 mg of hydromorphone, was not strong enough. Waisel warned that the "implication of the inadequate dose of midazolam and the hydromorphone (which does not produce unconsciousness) is that there is, at the very least, a substantial risk an inmate such as McGuire will be aware of and experience air hunger as the ventilator depressant effects of hydromorphone and midazolam take effect." Essentially, McGuire would die a slow and painful death, completely aware of his surroundings.
On the other hand, Dr. Dershwitz found Dr. Waisel’s findings inaccurate. In his expert statement, Dr. Dershwitz determined "the dose of hydromorphone specified in the first injection by the Ohio protocol is extremely high and is expected to cause virtually every person given such a dose to stop breathing."
McGuire took about 20 minutes to die when he was executed on January 16 of this year. During that time, he struggled, gasped, choked, and attempted to sit up. To onlookers, he appeared to be in visible pain. It was not unlike Wood's death, though it only took a fraction of the time. Dr. Waisel's medical expertise proved correct in this particular case. Ohio has placed a moratorium on executions ever since.
While both men appeared to be in visible pain during their deaths, it is unclear how they actually felt. We spoke with Dr. Steven Baumrucker, Associate Editor in Chief of the American Journal of Hospice and Palliative Medicine, who explained that in the Arizona execution, the inmate was given the equivalent of 800 mg of oral morphine, or 80 Lortab 10's.
"If this person was tolerant of opioids, that may not be enough to kill him quickly. This maybe why this took two hours. That is a questionable cocktail. Now, did he suffer during that? The things they saw as suffering maybe bothered the people that were watching more than it was bothering him. But can we say that he didn't suffer? No."
An Ohio official told the judge working to find an acceptable lethal injection protocol that "You're not entitled to a pain-free execution." This mentality is a point of contention on both sides of the execution battle. While some believe a painful execution qualifies as cruel and unusual punishment, others believe that with murderers who are guilty of terrible crimes against humanity, the end is more important than the means.
"Ethics is not calculus."
In the case of Wood's execution, the lawyers sought the lethal injection protocol to ensure that the death would not be painful. Additionally, a further investigation could have prolonged the inmate's life, however the court ruled against the revealing of any data that would have required more investigating.
While the lawyers defending Wood believed this was necessary information to their client, on the other side of the lethal injection battle is the Criminal Justice Legal Foundation, which believes the protocol itself is of no matter to the inmate and such lawsuits only "hold up executions." Michael Rushford is president of the foundation, which describes itself as "a nonprofit, public interest law organization dedicated to improving the administration of criminal justice."
"Fighting over the exact drug, and where we got it, is a waste of time and money," Rushford explained to The Wire. "We should be looking for the simplest, least painful, cheapest way to do this." Rushford also takes the view of the Ohio official when it comes to pain during death. "This murderer took two hours to die. Frankly, if the guy takes two hours to die, and he’s asleep for those two hours, that in our point of view is a successful execution." On the contrary, Richard Dieter, executive director of the Death Penalty Information Center in Washington, believes a two-hour execution is "inhumane and objectionable, even if they are pretty much asleep."
In a phone interview with The Wire, Dieter argued the secrecy behind the protocol was problematic. "States have had to scramble to replace the Chapman formula. To get help with that, from doctors, from pharmaceutical companies, from local pharmacies, they have had to assure anonymity. People are willing to say what might work, but they aren’t willing to have their name or their company associated with it. So we have this secrecy around it." On the contrary, Rushford believes the anonymity is necessary, as otherwise, the medical professionals and manufacturers involved may face protests.
With reports of two recent botched executions, Dieter believes momentum is building for the process to become unveiled. "Courts have allowed these executions to go forward despite the secrecy. There is no incentive for the state to reveal more than they have to, but this is getting to the point of national embarrassment. A well-functioning Congress may have already called for hearings."
While Rushford also notes that little is publicly known about exactly how the protocol is made, and by whom, he believes there is a larger issue at hand: the concept of a compounded protocol itself is flawed. Instead, he advocates for a single drug process. Rushford also suggested that death by nitrogen gas should be considered for those on death row and noted "some states are even considering firing squads again."
"The court is more comfortable with a one-drug protocol. That’s much less complicated, and there are scores of anesthesia that are available. It’s very effective," said Rushford. "The best anesthesia is the one that is most effective, that they are simply put to sleep. If you give someone enough of that drug, they will die, it'll be boring, they'll go to sleep." Rushford's organization has successfully persuaded two states, Texas and Missouri, to adopt the single-drug execution method using a high dose of pentobarbital, which is used to put down animals.
While it may be "boring," Dr. Baumrucker notes that it may not be quite that simple. "There is a finite number of opioid receptors in the body. Once a narcotic fits that receptor in the body; the classic one is the mu opioid receptor. When you hit it, it does several things, there are specific changes in the body." In other words, after a certain point, more drugs does not mean faster death, even at fifteen doses, as in the Arizona execution.
"There are reasons why there are maximum doses of these things. So if you crank up the dose, you can kill someone on purpose. You can, theoretically, kill people by giving them an overdose of Tylenol but that is a long, drawn out, miserable affair," continued Dr. Baumrucker. "You're relying on the drug to be toxic enough to kill them quickly, and now, who is studying them? Because it is unethical to do these studies, you have to hope for the best."
Still, a number of other states are set on using a lethal injection composed of several drugs. "States that are still using a combination of drugs, you have more drugs to buy and locate, and there is always the question of dose," said Rushford, "We think that the whole issue is kind of academic — you are trying to end the life of a murderer."
Primum non nocere
When it comes to the idea of lethal injections as academia, the academic world of medicine shifts uncomfortably in their lab coats. Primum non nocere, reads the Hippocratic Oath: first do no harm. To execute is, inherently, to harm.
Both of the doctors consulted as experts in the Ohio case were anesthesiologists. Their expertise is in line with the types of drugs used to kill inmates. They are extremely well informed on exactly how a body will die when these drugs are injected, and their expertise could be used to create lethal injections that offer as little pain as possible. However, their professional community does not condone such involvement. We reached out to the American Society of Anesthesiologists, who offered this statement on the matter:
The American Society of Anesthesiologists® (ASA®) does not take a position on lethal injection or capital punishment, as this is not the practice of medicine. Physicians are healers. The doctor-patient relationship depends upon the premise that a physician uses his or her medical expertise only for the benefit of patients.
The American Medical Association feels similarly, as their statement attests:
An individual’s opinion on capital punishment is the personal moral decision of the individual. A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.
While euthanasia is illegal in the United States, assisted suicide — dying with the aid of physician — is legal in Washington, Oregon, Montana, and Vermont. Hospice care, which pursues a death that is as peaceful and pain-free as possible, is legal, and encouraged, throughout the country. Medical professionals have the expertise to offer a comfortable death, but the ethics surrounding this practice are difficult to navigate.
"The ethical argument is that the execution is going to happen anyway, so we as physicians should make it as comfortable as we possibly can. However, the AMA feels that’s a flawed argument because that’s a flawed premise," explained Dr. Baumrucker. "The number one idea is 'non-maleficence,' which is 'first do no harm.' The key word in that statement is 'first'. Number one, don’t do any harm. Now whether you agree with lethal injection or not, or the death penalty or not, it is considered to be unethical for a physician to participate."
This view from the medical community is entirely understandable, and they are certainly not in charge of creating the updated lethal injection protocol. However, neither, it seems, is anyone else. The community with the most expertise is ethically bound to not get involved. So instead, we are faced with a trial-and-error method. Some trials are better than others: the most recent state execution, of Missouri murderer Michael Worthington on August 6 , took only ten minutes. Still, until a new protocol is created and the veil of secrecy is lifted, it is unlikely that every execution will be as clean cut as that of Worthington.
Or perhaps as Jay Chapman, the man behind the original protocol, put it, it will just go away. "I think that maybe the death penalty itself is going to go away and they won't have to be concerned with the method by which it would be carried out."
This article was originally published at http://www.thewire.com/business/2014/08/recipe-for-disaster-the-difficulties-of-concocting-a-lethal-injection/375772/