Lethal Injection

The medicalization of capital punishment reflected in the rise of lethal injection should be situated within a broader historical transformation in the cultural landscape of state-authorized violence.  It was only fairly recently – beginning in the middle of the 19th century – when public execution came to be positioned by reformers as a cruel and unnecessarily violent act.   Indeed, public and torturous forms of capital punishment have a long and global history. As far back as the 18th century B.C., King Hammurabi of Babylon codified the death penalty for 25 different crimes.  The death penalty also featured in the Hittite Code from the 14th century, and in the 5th century B.C.’s Roman Law of the Twelve Tablets.[1] Death sentences were carried out by such means as crucifixion, beating to death, burning alive, and impalement.  In the Tenth Century A.D., hanging became the usual method of execution in Britain.

With Britain influencing America’s use of the death penalty more than any other country, capital punishment in the American colonies was typically a highly public spectacle.[2] Intended to serve as a demonstration of the state’s power to punish and thus to discourage others against criminal acts, public executions would attract hundreds and sometimes tens of thousands of eager viewers.  Local merchants would sell souvenirs and alcohol, while fighting and pushing would break out as people jockeyed for the best view of the hanging. At times, spectators would taunt the person to be hanged, or try to tear down the scaffold or rope for keepsakes of the event.  Efforts to abolish public executions emerged toward the middle of the 19th century by reformers who argued that the progress of civilization required the end to such practices.  The last public execution in the United States was held in Kentucky in 1936. Rainey Bethea, an African American man, was hung before a crowd of 20,000 people who had gathered to watch the execution, and which included thousands coming from out of town.[3]  Execution by guillotine and the firing squad causes instant death but is bloody. In attempts to provide more humane, reliable, and scientific methods of killing, hanging was replaced by electrocution, and more recently by lethal injection – the standard in the United States since the 1980s.[4]

 

Thousands of spectators gathered to watch the last public execution in the United States, the hanging of Rainey Bethea, in 1936 in Kentucky.

 

Abolitionist accounts often rely on narratives that tout the termination of public executions as a triumph “for reform, for humanity, and for civilization.”[5]  But scholars suggest that this narrative fails to recognize how medicalization has served to turn execution into what is now seen to be a “routine” medical procedure. Lethal injection, since the early 1980s, has become popular as a form of capital punishment in the United States not only because it is inexpensive but also because it is seen as “humane.”  When compared to electrocution or cyanide asphyxiation, lethal injection has been widely considered by the American public as “more dignified.” Scholars have argued that medicalizing capital punishment in this way works to deflect ethical challenges to lethal injection hiding it behind a “medical veneer.”[6] Thus, by recognizing how the medicalization of death has not so much humanized capital punishment as much as it has altered the terms by which medicine has been recruited to put to death subjects of the state, scholars have problematized triumphalist narratives that claim that lethal injection represents a more “civilized” means of state-authorized death.

This medicalization of death has moved the process of execution from a punitive spectacle to a more scientific procedure. If lethal injection is to be accepted as more “civilized,” “dignified,” and “humane,” then the practice must be carried out with scientifically validated standards. The common protocol for execution by lethal injection was developed in Oklahoma in 1977 by Jay Chapman and involved the sequential intravenous administration of three drugs through a saline drip. The first drug is an anesthetic, sodium thiopental, that renders the prisoner unconscious as it “amplifies the effect of GABA, a neurotransmitter that depresses brain activity, while also blocking the actions of an excitatory brain receptor, AMPA, which acts in many parts of the brain.”[7] The second injection is a paralytic agent (most often pancuronium bromide) that prevents neuromuscular responses to pain by blocking the transmission of acetylcholine. The third drug is potassium chloride that interrupts electrical signals in the heart and deprives the brain of oxygen thereby inducing cardiac arrest. The dosage recommendation for these three drugs is each designed to be lethal.

Though there is little doubt that this sequence of injections would eventually kill the prisoner, this protocol has raised important scientific questions about its efficacy and humaneness.[8] One key problem is that “the method was never subjected to medical and scientific study, much less held to the standards for animal euthanasia.”[9] These drugs have never received FDA approval for this use. How are trials and experiments carried out when the effect and intent of the drug is to kill the inmate? Another key problem involves the effectiveness and availability of the anesthetic drug that makes the prisoner unconscious. Studies in 2005 and 2007 found that the dosages of sodium thiopental might not be high enough to induce unconsciousness and that the inmate might experience chemical asphyxiation.[10] One of the concerns about lethal injection is that the paralytic agent would prevent inmates from any ability to move or express pain should they not be fully unconscious. North Carolina attempted to address these concerns in to require the use a bispectral index to assess the depth of anesthetic sedation during execution before it placed a moratorium on executions.[11]

Another problem became the availability of sodium thiopental which was used until 2009, when it was replaced by pentobarbital, the same drug prescribed for self-administration for aid-in-dying.[12]  Hospira, the supplier of thiopental, and later Lundbeck, the Danish manufacturer of its alternative, pentobarbital, refused to deliver the drugs for “off-label use.” An embargo on the export of execution drugs was backed by the European Union, which is committed to the abolition of the death penalty.[13] This has contributed to a variety of changing state protocols for how to execute by lethal injection.[14]

Attempts to find alternative drugs for use in lethal injection have raised legal, ethical, and quality control issues The dosage of the sedative benzodiazepine midazolam and the opioid hydromorphone used as an alternative in the execution of Dennis Maguire in Missouri caused him to “pant for air, arch his back and clench his fists for ten minutes” before being declared dead at 24 minutes.[15] Fentanyl, a drug that has been a central killer in the epidemic of overdoses in the United States in recent years, has become an alternative in Nebraska and Nevada. It is deadly in high doses and easy available, and combined with Valium and cisatracurium besylate causes “suffocation via paralysis of the diaphragm muscles.”[16] Mississippi and Oklahoma are among the states who have approved the use of nitrogen gas as an alternative way of stopping the prisoner from breathing.[17] Some states used a single-drug barbiturate similar to that used in Medical Aid-in-Dying. The variety of procedures suggests that lethal injection might verge on a form of human experimentation that exploits vulnerable death row prisoners as well as a medical means of causing death.

Whether it is morally acceptable for the state to execute people is an important moral issue for political debate. Global perspectives on corporal punishment enable us to see the widening gap between the US and a growing international consensus to abolish the death penalty.  There are now at least 129 nations that are either de facto or de jure abolitionist and many see the death penalty as a human rights abuse. The vast majority of the world’s executions are carried out by eight nations: China, Iran, Saudi Arabia, Iraq, Pakistan, Egypt, Somalia, and the United States.[18] Nine U.S. states have repealed the death penalty since 2006, recently in 2018 when conservative Nebraska did so over the veto of its governor.  A series of “botched” executions, and fears that the paralytic agent only masked the convulsions and agony of the dying prisoner, has led not only to changing protocols but also to complex situations of litigation that have slowed the number of executions in recent years and to a moratorium on the death penalty in several states. Historian Austin Sarat has documented that seven percent of lethal injection executions have been botched, higher than any other method in American history, and more than twice the average of all methods.[19]

 

Chemical burns on the arms of Angel Diaz during his postmortem autopsy. The execution team had pushed the IV catheters through the veins into the underlying tissue, requiring a second dose of lethal drugs and 34 minutes before he died. Governor Jeb Bush responded by declaring a temporary moratorium on executions in Florida. https://newrepublic.com/article/117898/lethal-injection-photos-angel-diazs-botched-execution-florida [20]

Prisoners and anti-death penalty advocates have argued in many court cases that the unnecessary pain that could be caused by these injection procedures contravene the Constitution’s protection against “cruel and unusual punishment.” The Supreme Court ruled in 2008 that that “the risk of pain from maladministration” and “the failure to adopt untried and untested alternatives” do not make the practices unconstitutional and in 2015 that inmates must identify a “known and available alternative method” that would lower the risk of pain.[21]

A 2018 study discussed abuses of lethal injection in China – which executed more individuals in 2017 (“thousands” but does not release official figures) than the rest of the 22 countries combined who carried out capital punishment.[22] Unethical practices include inefficient doses of anesthesia and hastily declaring death “immediately after cardiac and respiratory arrest” is initiated by the administration of the drug protocol, followed by the immediate procurement of organs for transplantation.[23]

The establishment of lethal injection as the method for capital punishment has raised crucial questions for medical practitioners, beginning with if it should ever be considered a medical procedure. Is assistance with an execution consistent with a doctor’s mandate to alleviate suffering? Or does participation by physicians in an operation designed to kill, as one psychiatrist argues, “lend false credibility and a veneer of humanity to a practice that is anything but credible or humane”?[24]  What Dr. Jonathan Groner calls the “Hippocratic Paradox” highlights the problem: many states legally require medical professionals to supervise lethal injection to ensure a safe procedure, while, at the same time, many medical organizations have ruled that health personnel should play no role in administering the death penalty because it contravenes the oath to “do no harm.”[25] For example, the American Medical Association’s code stipulates that “a physician must not participate in a legally authorized execution” (and that organ donation is permissible only if the decision “was made before the prisoner the prisoner’s conviction.”)[26]  Understanding the reality of how condemned prisoners experience dying during execution is obstructed by secrecy statutes in many states that prevent the public disclosure of members of the execution team or the source of the drugs they used.

A consideration of the ethical, scientific, and cultural dimensions of lethal injection therefore enables us to complicate common and straightforward narratives that the rise of lethal injection represents a humane evolution of the practice of capital punishment.  While the medicalization of state-authorized death in the form of lethal injection would appear to have sanitized and rendered less cruel the practice of committing citizens to death, it has also generated critical questions about the efficacy and role of drugs in enabling “humane” death, and about the implications for physicians and for medical ethics when medicine is used for the purposes of killing.  The fact that the US is increasingly out of step with the global community’s movement toward the abolition of capital punishment suggests that these questions are far from settled.

Jocelyn Chua

Jeannie Loeb

Tim Marr

[1] Laura Randa, ed., Society’s Final Solution: A History and Discussion of the Death Penalty. (Lanham, MD: University Press of America, 1997). https://www.worldcat.org/title/societys-final-solution-a-history-and-discussion-of-the-death-penalty/oclc/36283873

[2] Robert Bohm, Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United States (New York: Routledge, 2012). https://www.worldcat.org/title/deathquest-an-introduction-to-the-theory-and-practice-of-capital-punishment-in-the-united-states/oclc/892240146&referer=brief_results

[3] Perry T. Ryan, “The Hangman.” In The Last Public Execution in America (Lexington, VA: Alexandria Printing, 1992). https://www.worldcat.org/title/last-public-execution-in-america/oclc/70121898&referer=brief_results

[4] Austin Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton, NJ: Princeton University Press, 2002). https://www.worldcat.org/title/when-the-state-kills-capital-punishment-and-the-american-condition/oclc/488587366&referer=brief_results

[5] Randall McGowan, “Civilizing Punishment: The End of the Public Execution in England,”  Journal of British Studies 33, no 3 (1994):257-282.https://www.cambridge.org/core/journals/journal-of-british-studies/article/civilizing-punishment-the-end-of-the-public-execution-in-england/01AF9A6D382D71521969982EC1D56B30

[6] Jonathan Groner, “Lethal Injection and the Medicalization of Capital Punishment in the United States,” Health and Human Rights 6, no.1(2002)::64-79. https://cdn2.sph.harvard.edu/wp-content/uploads/sites/125/2013/07/5-Gruner.pdf

[7] Peter Sergo, “How Does Lethal Injection Work?” The Scienceline Newsletter, November 12, 2007. https://scienceline.org/2007/11/ask-sergo-deathpenalty/

[8] Max Kutner, “Meet A. Jay Chapman, ‘Father of the Lethal Injection,” Newsweek, May 1, 2017, https://www.newsweek.com/jay-chapman-inventor-lethal-injection-arkansas-592506; Erd Pilkington, “It’s Problematic: Inventor of US Lethal Injection reveals Death Penalty Doubts,” The Guardian, April 29, 2015. https://www.theguardian.com/world/2015/apr/29/supreme-court-lethal-injection-inventor-death-penalty-doubts

[9] Deborah W. Denno, “The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty,” Fordham Law Review 76, no. 2 (2007): 70.https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4294&context=flr

[10] T.A. Zimmers, J. Sheldon, D.A. Lubarsky, F. López-Muñoz, L. Waterman, R. Weisman, et al. “Lethal Injection for Execution: Chemical Asphyxiation?” PLoS Medicine 4, no. 4 (2007). https://doi.org/10.1371/journal.pmed.0040156; L.G. Koniaris, T. A. Zimmers, D. A. Lubarsky, J.P. Sheldon, “Inadequate Anaesthesia in Lethal Injection for Execution,” Lancet. 365, no. 9468, Apr 16-22, 2005, 1412-4.

[11] Jennifer E. Meyer, “Ameliorating Lethal Injection by Using Bispectral Index Monitoring of Inmates to Help Ensure a More Humane Death,” Hofstra Law Review 45, no. 2 (2016). https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2953&context=hlr

[12] Nathalie Baptiste, “‘This Isn’t Science’: We Have No Idea How Much Pain Inmates Feel During Execution,” Mother Jones, May 15, 2017. https://www.motherjones.com/environment/2017/05/lethal-injection-inquring-minds/

[13] Matt Ford, “Can Europe End the Death Penalty in America? The Atlantic, February 19, 2014. https://www.theatlantic.com/international/archive/2014/02/can-europe-end-the-death-penalty-in-america/283790/

[14] “State by State Lethal Injection,” Death Penalty Information Center, https://deathpenaltyinfo.org/state-lethal-injection

[15] Owen Dyer, “The Slow Death of Lethal Injection,” British Medical Journal 348, April 2014. https://doi-org.libproxy.lib.unc.edu/10.1136/bmj.g2670

[16] William Wan and Mark Berman, “States to Try New Ways of Executing Prisoners. Their Latest Idea? Opioids,” The Washington Post, December 9, 2017. https://www.washingtonpost.com/national/health-science/states-choose-new-ways-to-execute-prisoners-their-latest-idea-opioids/2017/12/09/3eb9bafa-d539-11e7-95bf-df7c19270879_story.html; Josh Bloom, “Fentanyl Front and Center in the Legal Injection Battle,” American Council on Science and Health, January 25, 2018. https://www.acsh.org/news/2018/01/25/fentanyl-front-and-center-lethal-injection-battle-12468

[17] Kevin Morrow, “Execution by Nitrogen Hypoxia: The Search for Scientific Consensus,” 59 Jurimetrics Journal, August 24, 2018, forthcoming in print, 2019. https://ssrn.com/abstract=3237947 or http://dx.doi.org/10.2139/ssrn.3237947

[18] Amnesty International, “The Death Penalty: An International Perspective.”  https://deathpenaltyinfo.org/death-penalty-international-perspective, Accessed January 3, 2018.

[19] Austin Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty (Stanford, CA: Stanford University Press, 2014), 120; Greg Miller, “America’s Long and Gruesome History of Botched Executions,” Wired, May 12, 2014 https://www.wired.com/2014/05/botched-executions-austin-sarat/; For a description of botched executions from lethal injection see the list compiled by Prof. Michael L. Radelet at https://deathpenaltyinfo.org/some-examples-post-furman-botched-executions.

[20] Ben Crair, “Photos from a Botched Legal Injection,” New Republic, May 29, 2014. https://newrepublic.com/article/117898/lethal-injection-photos-angel-diazs-botched-execution-florida

[21] Amanda Chew, “Lethal Injection: Constitutional Method of Execution or Cruel and Unusual Punishment,” International Journal of Punishment and Sentencing 6, no. 1 (2010), https://heinonline.org/HOL/P?h=hein.journals/punisen6&i=23 . Baze v. Rees, 553 U.S. 35, 41, 44-51, 53-57, 62 (2008); Glossip v. Gross, 135 S. Ct. 2726, 2731-42 (2015)

[22] Norbert W. Paul, et. al., “Determination of Death in Execution by Lethal Injection in China,” Cambridge Quarterly of Healthcare Ethics 27, no. 30 (July 2018): 464. https://www.researchgate.net/profile/Arthur_Caplan2/publication/325454352_Determination_of_Death_in_Execution_by_Lethal_Injection_in_China/links/5b1ef6ad0f7e9b0e373dd263/Determination-of-Death-in-Execution-by-Lethal-Injection-in-China.pdf?origin=publication_detail

[23] Samantha Herbert and Keely Lockhart, “Which Countries Executed the Most People Last Year, and Why?” The Telegraph, April 12, 2018, https://www.telegraph.co.uk/news/2018/04/12/countries-executed-people-last-year/

[24] Kerry J. Sulkowicz, “Doctors at an Execution? Medical Ethics Says No,” New York Times, April 25, 2017, https://www.nytimes.com/2017/04/25/opinion/doctors-at-an-execution-medical-ethics-says-no.html

[25] Jonathan I. Groner, “The Hippocratic  Paradox: The Role of the Medical Profession in Capital Punishment in the United States,” Fordham Urban Law Journal 35, no. 4 (2008): 883-917, https://ir.lawnet.fordham.edu/ulj/vol35/iss4/7/

[26] “Capital Punishment, Code of Medical Ethics opinion 9.7.3,” American Medical Association  https://www.ama-assn.org/delivering-care/ethics/capital-punishment. The definition of participation here does not include the certification of the actual death.

 

3 Comments

  1. I found your topic to be very interesting and the layout that you incorporated into your website made the information easy to understand. I liked how you all included pictures so that the reader was more likely to stay engaged in what you guys had to offer in your work. I found the Method and Executions chart to be very helpful, as it presented potentially monotonous information in an intriguing way so that readers gained the knowledge you intended without skipping over it, as they likely would have done had the numbers been presented in a paragraph-like format. I had no idea that Britain had such an influential impact on America, that was knowledge that I did not have prior to reading your article – great job!

  2. The concept of lethal injection is a highly debated topic with two main perspectives. One that includes a group of people that agree with the death penalty and support the use of lethal injection to end life, and another that completely rejects the death penalty. The main concern with lethal injection is that: does it comply with a form of death that is deemed not cruel and unusual? I connect this idea with a movie titled “Law Abiding Citizen” where a criminal received the death penalty and was supposed to receive the lethal injection but the injection fluids were tampered with, resulting in a painful death process. The process was inhumane as people just watch a man die in front of their eyes, comparable to murder. Although the death penalty is only enacted in extreme cases where death is involved, I personally feel that an eye for an eye approach is unjustifiable in any case and is indeed cruel and unusual. It forces one to ask what crime does an individual have to commit that would result in his/her own death? Life itself shouldn’t be placed on a group of individuals that decide on a person’s fate even if that person is a criminal.

  3. Harrison Davis

    April 25, 2019 at 6:43 am

    The scientific part of lethal injection is really surprising to me. I had no idea that they have used so many different kinds of drugs with minimal testing. I think this should raise more concern than it actually does. The fact that the FDA has not approved the drugs should make it illegal to use on humans. Basically, the government is saying prisoners aren’t people and should not have the same rights in dying as everyday people. Yes, they probably performed a heinous crime, but to call this humane is a stretch if there are reports of people still living after the injections and the constant switching of different drugs of choice.

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