- Email: [email protected]
Can lethal injection for execution really be “fixed”?
Comment
I have been a temporary consultant to Pfizer and to Solvay. My clinical practice occasionally necessitates provision of medicolegal reports without prejudice. 1 2
3 4 5
Anderson KD. Targeting recovery: priorities of the spinal cord-injured population. J Neurotrauma 2004; 21: 1371–83. World Health Organization. Gender and reproductive rights. http:// www.who.int/reproductive-health/gender/glossary.html (accessed Jan 10, 2007). Bhasin S, Enzlin P, Coviello A, Basson R. Sexual dysfunction in men and women with endocrine disorders. Lancet (in press). Rees P, Fowler CJ, Mars CP. Sexual function in men and women with neurological disorders. Lancet (in press). Kaiser DR, Billups K, Mason C, Wetterling R, Lundberg JL, Bank AJ. Impaired brachial artery endothelium–dependent and –independent vasodilatation in men with erectile dysfunction and no other clinical cardiovascular disease. J Am Col Cardiol 2004; 43: 179–84.
6 7
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9 10
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Basson R, Weijmar Schultz WM. Sexual sequelae of general medical disorders. Lancet 2007; 369: 409–24. Nurnberg HG, Hensley PL, Gelenberg AJ, Fava M, Lauriello J, Paine S. Treatment of antidepressant-associated sexual dysfunction with sildenafil: a randomized controlled trial. JAMA 2003; 289: 56–64. Bhasin S, Cunningham GR, Hayes FJ, et al. Testosterone therapy in adult men with androgen deficiency syndromes: an Endocrine Society Clinical Practice Guideline. J Endocrinol Metab 2006; 91: 1995–2010. de Vries CS, Bromley SE, Farmer RDT. Myocardial infarction risk and hormone replacement: differences between products. Maturitas 2006; 53: 343–50. Santoro A, Torrens J, Crawford S, et al. Correlates of circulated androgens in midlife women: the Study of Women’s Health Across the Nation. J Clin Endocrinol Metab 2005; 90: 2004–63. Labrie F, Bélanger A, Bélanger P, et al. Estrogen glucuronides, instead of testosterone, as the new markers of androgenic activity in women. J Steroid Biochem Molecular Biol 2006; 99: 182–88.
Can lethal injection for execution really be “fixed”? See Editorial page 343
After months of intensive investigation, US District Court Judge Jeremy Fogel recently concluded that California’s “implementation of lethal injection is broken”,1 creating “an undue and unnecessary risk that an inmate will suffer pain so extreme that it offends the Eighth Amendment”. Fogel identified “critical deficiencies”, including unreliable screening of members of the execution team, lack of meaningful training and supervision, unreliable recordkeeping, improper preparation and administration of the anaesthetic thiopental, and inadequate and poorly designed facilities. He suggested that such procedural deficiencies could have been responsible for the botched California execution of Robert Lee Massie, who the state’s expert witness admits “may well have been awake when he was injected with potassium chloride”.
Empics
The printed journal includes an image merely for illustration
352
California is not alone in either reconsidering the death penalty or discovering problems with its implementation. The death penalty is currently on hold in 11 US states. Illinois and New Jersey are debating the death penalty itself. The others, Arkansas, California, Delaware, Florida, Maryland, Missouri, North Carolina, Ohio, and South Dakota, are evaluating the method of lethal injection.2 Missouri executions have been halted partly because the individual in charge admitted to possessing no written protocol and to halving the dose of anaesthesia.3,4 Recently, in Florida, technical ineptitude prolonged the execution of Angel Diaz.5 Diaz was awake and apparently speaking 24 min after the first injection, and was finally declared dead after 34 min and two sets of injections. 30 cm chemical burns in both antecubital fossae were found at autopsy, which prompted the medical examiner to conclude that the intravenous lines were misplaced and the drugs were delivered subcutaneously.6 Although state officials did not comment on whether he suffered, Diaz probably experienced extreme pain and progressive paralysis, ultimately succumbing to suffocation. Executions continue in other states, although similar deficiencies in training and implementation have been identified. For example, Alabama executioners indicated their intent to establish intravenous access in non-existent vessels, citing the “external carotid vein” and the “saphenous vein in the arm”.3 Such examples of bungled executions and ill-trained execution teams are evidence that unrecognised suffering in lethal injection can occur due to inadequate anaesthesia, as previously reported.7 Rather than the www.thelancet.com Vol 369 February 3, 2007
Comment
clean, clinical procedures they mimic, lethal injections are furtive affairs, characterised by the slipshod efforts of poorly trained personnel, with no monitoring for anaesthesia and no expert review. Even so, Judge Fogel and others have determined that lethal injection “can be fixed” and quickly.1 Fogel ordered California to conduct a thorough review of the protocol, ensure that a sufficient dose of anaesthetic reaches the inmate, and justify the use of the three-drug cocktail when an overdose of anaesthetic could suffice. If California fails to respond adequately, the judge will rule lethal injection unconstitutional. 2 days after Diaz’s execution, the Governor’s office has indicated it will issue a report by May 15, 2007, and has requested that deliberations be done in secret.8 In Florida, Governor Jeb Bush created a Commission on Administration of Lethal Injection to provide recommendations on changing the protocol by March 1, specifying that the commission reflect a crosssection of the legal, corrections, medical, and scientific communities.9,10 US District Judge Fernando Gaitan Jr ordered that Missouri executions could proceed if board-certified anaesthesiologists were enlisted to assure anaesthesia.11 Implicitly and explicitly then, Judges Fogel and Gaitan and Governor Bush have ordered that medical and scientific experts should evaluate and perfect lethal injection. (Indeed, three physicians have already been named to the Florida panel.) As death-row challenges mount, others will probably follow suit and forcibly extend the long dark history of expert involvement in execution. Guillotin, a noted French physician of his time, is now best known for his instrument of death. Thomas Edison aided a committee of physicians and a dentist in the creation and implementation of the electric chair. Physicians were directly responsible for the development of lethal injections and gas chambers used by the Nazis.12 Physicians recommended the current lethal injection protocol and some participate actively in executions.13,14 Except for the Nazis, those involved invariably believed they were “fixing” the process and rendering execution more humane. The condemned are often society’s worst and most brutal members who have sometimes murdered precious and vulnerable people. Without debating the death penalty itself, however, we believe that lethal injection cannot be “fixed”. It is an abominable perversion of the tools of healing. Participation www.thelancet.com Vol 369 February 3, 2007
by physicians and scientists in perfecting medical execution is morally wrong.12 Judicial or executive commandeering of medical tools and personnel to kill is also wrong. The expertise of doctors and biomedical researchers was developed by individuals, institutions, and science dedicated to saving and improving human lives. Appropriating that knowledge to kill is an appalling betrayal of the core values of medical research. *Leonidas G Koniaris, Jon P Sheldon, Teresa A Zimmers University of Miami, Miami, FL 33156, USA (LGK, TAZ); and Arlington, Virginia, USA (JPS) [email protected] JPS practises capital defence. LGK and TAZ declare that they have no conflict of interest. 1
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United States District Court for the Northern District of California San Jose Division. Morales v Tilton. Case number 06 219 JF RS and 06 219 926 JF RS. Dec 15, 2006: http://www.deathpenaltyinfo.org/ CalifLethalInjection.pdf (accessed Jan 26, 2007). Death Penalty Information Center. http://www.deathpenaltyinfo.org (accessed January 10, 2007). Alper T. Capital cases: lethal incompetence. Champion Mag 2006; 30: 41–44. http://www.nacdl.org/public.nsf/698c98dd101a846085256eb4 00500c01/88b3d819d01e4db485257210005bd4d7?OpenDocument &Highlight=0,alper (accessed Jan 26, 2007). United States District Court Western District of Missouri Western Division. Taylor v Crawford et al. Case no 05-4173-CV-S-FJG. June 5, 2006: http://www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injection %20Documents/Missouri/Taylor/June%202006%20Hearing/1983% 20PR%20John%20Doe%20I%20Deposition%20Tr%20Redacted.pdf (accessed Jan 26, 2007). Tisch C, Krueger C. Second dose needed to kill inmate. St Petersburg Times Dec 14, 2006: 1A. http://www.sptimes.com/2006/12/14/State/Second_ dose_needed_to.shtml (accessed Jan 27, 2007). Kennedy J, Bell M. Bush halts executions to review procedure: Florida prison staff inserted the killer’s needles poorly, a preliminary autopsy finds. Orlando Sentinel Dec 16, 2006: A1. Koniaris LG, Zimmers TA, Lubarsky DA, Sheldon JP. Inadequate anaesthesia in lethal injection for execution. Lancet 2005; 365: 1412–14. United States District Court Northern District of California San Jose Division. Morales v Tilton et al. Case no 06-219-JF-RS, 06-926-JF-RS. Jan 16, 2007: http://www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injecti on%20Documents/California/Morales/Morales%20Dist%20Ct/2006.01.16 %20filings/Gov%27s%20response.pdf (accessed Jan 27, 2007). Liptak A, Aguayo T. After problem execution, Governor Bush suspends the death penalty in Florida. New York Times Dec 16, 2006: 11. http:// select.nytimes.com/gst/abstract.html?res=F50D13F939550C758DDDAB 0994DE404482 (accessed Jan 27, 2007). State of Florida Office of the Governor. Executive order number 06-260. http://sun6.dms.state.fl.us/eog_new/eog/orders/2006/December/06260-lethalinjection.pdf (accessed Jan 26, 2007). United States District Court Western District of Missouri Western Division.Taylor v. Crawford et al, Case No. 05-4173-CV-S-FJG. Jun 26, 2006: http://www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injection %20Documents/Missouri/Taylor/June_26_Order_Taylor_v._Crawford.pdf (accessed Jan 27, 2007). Groner JI. Lethal injection: a stain on the face of medicine. BMJ 2002; 325: 1026–28. Fellner J, Tofte S. So long as they die: lethal injection in the United States. Human Rights Watch 2006. http://hrw.org/reports/2006/us0406 (accessed Jan 26, 2007). Gawande A. When law and ethics collide—why physicians participate in executions. N Engl J Med 2006; 23: 1221–29.
353
I have been a temporary consultant to Pfizer and to Solvay. My clinical practice occasionally necessitates provision of medicolegal reports without prejudice. 1 2
3 4 5
Anderson KD. Targeting recovery: priorities of the spinal cord-injured population. J Neurotrauma 2004; 21: 1371–83. World Health Organization. Gender and reproductive rights. http:// www.who.int/reproductive-health/gender/glossary.html (accessed Jan 10, 2007). Bhasin S, Enzlin P, Coviello A, Basson R. Sexual dysfunction in men and women with endocrine disorders. Lancet (in press). Rees P, Fowler CJ, Mars CP. Sexual function in men and women with neurological disorders. Lancet (in press). Kaiser DR, Billups K, Mason C, Wetterling R, Lundberg JL, Bank AJ. Impaired brachial artery endothelium–dependent and –independent vasodilatation in men with erectile dysfunction and no other clinical cardiovascular disease. J Am Col Cardiol 2004; 43: 179–84.
6 7
8
9 10
11
Basson R, Weijmar Schultz WM. Sexual sequelae of general medical disorders. Lancet 2007; 369: 409–24. Nurnberg HG, Hensley PL, Gelenberg AJ, Fava M, Lauriello J, Paine S. Treatment of antidepressant-associated sexual dysfunction with sildenafil: a randomized controlled trial. JAMA 2003; 289: 56–64. Bhasin S, Cunningham GR, Hayes FJ, et al. Testosterone therapy in adult men with androgen deficiency syndromes: an Endocrine Society Clinical Practice Guideline. J Endocrinol Metab 2006; 91: 1995–2010. de Vries CS, Bromley SE, Farmer RDT. Myocardial infarction risk and hormone replacement: differences between products. Maturitas 2006; 53: 343–50. Santoro A, Torrens J, Crawford S, et al. Correlates of circulated androgens in midlife women: the Study of Women’s Health Across the Nation. J Clin Endocrinol Metab 2005; 90: 2004–63. Labrie F, Bélanger A, Bélanger P, et al. Estrogen glucuronides, instead of testosterone, as the new markers of androgenic activity in women. J Steroid Biochem Molecular Biol 2006; 99: 182–88.
Can lethal injection for execution really be “fixed”? See Editorial page 343
After months of intensive investigation, US District Court Judge Jeremy Fogel recently concluded that California’s “implementation of lethal injection is broken”,1 creating “an undue and unnecessary risk that an inmate will suffer pain so extreme that it offends the Eighth Amendment”. Fogel identified “critical deficiencies”, including unreliable screening of members of the execution team, lack of meaningful training and supervision, unreliable recordkeeping, improper preparation and administration of the anaesthetic thiopental, and inadequate and poorly designed facilities. He suggested that such procedural deficiencies could have been responsible for the botched California execution of Robert Lee Massie, who the state’s expert witness admits “may well have been awake when he was injected with potassium chloride”.
Empics
The printed journal includes an image merely for illustration
352
California is not alone in either reconsidering the death penalty or discovering problems with its implementation. The death penalty is currently on hold in 11 US states. Illinois and New Jersey are debating the death penalty itself. The others, Arkansas, California, Delaware, Florida, Maryland, Missouri, North Carolina, Ohio, and South Dakota, are evaluating the method of lethal injection.2 Missouri executions have been halted partly because the individual in charge admitted to possessing no written protocol and to halving the dose of anaesthesia.3,4 Recently, in Florida, technical ineptitude prolonged the execution of Angel Diaz.5 Diaz was awake and apparently speaking 24 min after the first injection, and was finally declared dead after 34 min and two sets of injections. 30 cm chemical burns in both antecubital fossae were found at autopsy, which prompted the medical examiner to conclude that the intravenous lines were misplaced and the drugs were delivered subcutaneously.6 Although state officials did not comment on whether he suffered, Diaz probably experienced extreme pain and progressive paralysis, ultimately succumbing to suffocation. Executions continue in other states, although similar deficiencies in training and implementation have been identified. For example, Alabama executioners indicated their intent to establish intravenous access in non-existent vessels, citing the “external carotid vein” and the “saphenous vein in the arm”.3 Such examples of bungled executions and ill-trained execution teams are evidence that unrecognised suffering in lethal injection can occur due to inadequate anaesthesia, as previously reported.7 Rather than the www.thelancet.com Vol 369 February 3, 2007
Comment
clean, clinical procedures they mimic, lethal injections are furtive affairs, characterised by the slipshod efforts of poorly trained personnel, with no monitoring for anaesthesia and no expert review. Even so, Judge Fogel and others have determined that lethal injection “can be fixed” and quickly.1 Fogel ordered California to conduct a thorough review of the protocol, ensure that a sufficient dose of anaesthetic reaches the inmate, and justify the use of the three-drug cocktail when an overdose of anaesthetic could suffice. If California fails to respond adequately, the judge will rule lethal injection unconstitutional. 2 days after Diaz’s execution, the Governor’s office has indicated it will issue a report by May 15, 2007, and has requested that deliberations be done in secret.8 In Florida, Governor Jeb Bush created a Commission on Administration of Lethal Injection to provide recommendations on changing the protocol by March 1, specifying that the commission reflect a crosssection of the legal, corrections, medical, and scientific communities.9,10 US District Judge Fernando Gaitan Jr ordered that Missouri executions could proceed if board-certified anaesthesiologists were enlisted to assure anaesthesia.11 Implicitly and explicitly then, Judges Fogel and Gaitan and Governor Bush have ordered that medical and scientific experts should evaluate and perfect lethal injection. (Indeed, three physicians have already been named to the Florida panel.) As death-row challenges mount, others will probably follow suit and forcibly extend the long dark history of expert involvement in execution. Guillotin, a noted French physician of his time, is now best known for his instrument of death. Thomas Edison aided a committee of physicians and a dentist in the creation and implementation of the electric chair. Physicians were directly responsible for the development of lethal injections and gas chambers used by the Nazis.12 Physicians recommended the current lethal injection protocol and some participate actively in executions.13,14 Except for the Nazis, those involved invariably believed they were “fixing” the process and rendering execution more humane. The condemned are often society’s worst and most brutal members who have sometimes murdered precious and vulnerable people. Without debating the death penalty itself, however, we believe that lethal injection cannot be “fixed”. It is an abominable perversion of the tools of healing. Participation www.thelancet.com Vol 369 February 3, 2007
by physicians and scientists in perfecting medical execution is morally wrong.12 Judicial or executive commandeering of medical tools and personnel to kill is also wrong. The expertise of doctors and biomedical researchers was developed by individuals, institutions, and science dedicated to saving and improving human lives. Appropriating that knowledge to kill is an appalling betrayal of the core values of medical research. *Leonidas G Koniaris, Jon P Sheldon, Teresa A Zimmers University of Miami, Miami, FL 33156, USA (LGK, TAZ); and Arlington, Virginia, USA (JPS) [email protected] JPS practises capital defence. LGK and TAZ declare that they have no conflict of interest. 1
2 3
4
5
6
7
8
9
10
11
12 13
14
United States District Court for the Northern District of California San Jose Division. Morales v Tilton. Case number 06 219 JF RS and 06 219 926 JF RS. Dec 15, 2006: http://www.deathpenaltyinfo.org/ CalifLethalInjection.pdf (accessed Jan 26, 2007). Death Penalty Information Center. http://www.deathpenaltyinfo.org (accessed January 10, 2007). Alper T. Capital cases: lethal incompetence. Champion Mag 2006; 30: 41–44. http://www.nacdl.org/public.nsf/698c98dd101a846085256eb4 00500c01/88b3d819d01e4db485257210005bd4d7?OpenDocument &Highlight=0,alper (accessed Jan 26, 2007). United States District Court Western District of Missouri Western Division. Taylor v Crawford et al. Case no 05-4173-CV-S-FJG. June 5, 2006: http://www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injection %20Documents/Missouri/Taylor/June%202006%20Hearing/1983% 20PR%20John%20Doe%20I%20Deposition%20Tr%20Redacted.pdf (accessed Jan 26, 2007). Tisch C, Krueger C. Second dose needed to kill inmate. St Petersburg Times Dec 14, 2006: 1A. http://www.sptimes.com/2006/12/14/State/Second_ dose_needed_to.shtml (accessed Jan 27, 2007). Kennedy J, Bell M. Bush halts executions to review procedure: Florida prison staff inserted the killer’s needles poorly, a preliminary autopsy finds. Orlando Sentinel Dec 16, 2006: A1. Koniaris LG, Zimmers TA, Lubarsky DA, Sheldon JP. Inadequate anaesthesia in lethal injection for execution. Lancet 2005; 365: 1412–14. United States District Court Northern District of California San Jose Division. Morales v Tilton et al. Case no 06-219-JF-RS, 06-926-JF-RS. Jan 16, 2007: http://www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injecti on%20Documents/California/Morales/Morales%20Dist%20Ct/2006.01.16 %20filings/Gov%27s%20response.pdf (accessed Jan 27, 2007). Liptak A, Aguayo T. After problem execution, Governor Bush suspends the death penalty in Florida. New York Times Dec 16, 2006: 11. http:// select.nytimes.com/gst/abstract.html?res=F50D13F939550C758DDDAB 0994DE404482 (accessed Jan 27, 2007). State of Florida Office of the Governor. Executive order number 06-260. http://sun6.dms.state.fl.us/eog_new/eog/orders/2006/December/06260-lethalinjection.pdf (accessed Jan 26, 2007). United States District Court Western District of Missouri Western Division.Taylor v. Crawford et al, Case No. 05-4173-CV-S-FJG. Jun 26, 2006: http://www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injection %20Documents/Missouri/Taylor/June_26_Order_Taylor_v._Crawford.pdf (accessed Jan 27, 2007). Groner JI. Lethal injection: a stain on the face of medicine. BMJ 2002; 325: 1026–28. Fellner J, Tofte S. So long as they die: lethal injection in the United States. Human Rights Watch 2006. http://hrw.org/reports/2006/us0406 (accessed Jan 26, 2007). Gawande A. When law and ethics collide—why physicians participate in executions. N Engl J Med 2006; 23: 1221–29.
353