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April 24, 2007

A new study assails lethal injection protocols

Just as Ohio and some other states appear poised to finally carry out some scheduled executions, a new study appearing in a medical journal reiterates concerns about lethal injection protocols.  Articles from the AP and from the Washington Post tell the story; here are highlights from the AP:

The drugs used to execute prisoners in the United States sometimes fail to work as planned, causing slow and painful deaths that probably violate constitutional bans on cruel and unusual punishment, a new medical review of dozens of executions concludes.

Even when administered properly, the three-drug lethal injection method appears to have caused some inmates to suffocate while they were conscious and unable to move, instead of having their hearts stopped while they were sedated, scientists said in a report published Monday by the online journal PLoS Medicine.

No scientific groups have ever validated that lethal injection is humane, the authors write.  Medical ethics bar doctors and other health professionals from taking part in executions....

The journal's editors call for abolishing the death penalty, writing: "There is no humane way of forcibly killing someone."...

The new review was written by many of the same authors who touched off controversy when they published a 2005 report suggesting that many inmates were conscious and possibly suffering when the last of the drugs was given. That report was criticized for its methodology, which relied on blood samples taken from prisoners hours after executions. The new paper looked at the executions of 40 prisoners in North Carolina since 1984 and about a dozen in California, plus incomplete information from Florida and Virginia....

Death penalty proponents complained the report's conclusions were based on scant scientific evidence.  "It's more like political science than medical science," said Mike Rushford, president of Criminal Justice Legal Foundation in Sacramento.... Dr. Mark Heath, an anesthesiologist at Columbia University Medical Center who has studied lethal injection cases, took issue with some of the paper's conclusions, but said it generally showed that concerns about lethal injection in its current form "are well-justified."

The full study appearing online journal PLoS Medicine can be accessed at this link, and the journal's editorial here asserts that "new data in PLoS Medicine will further strengthen the constitutional case for the abandonment of execution in the US."  Not surprisingly, Crime & Consequences and TalkLeft have different reactions to this new study.

UPDATE:  Orin Kerr has this thoughtful post at Volokh, which astutely explains why "it seems that there is much less to this study than the media coverage would have you believe."

April 24, 2007 at 02:11 AM | Permalink

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Comments

If they can humanely euthanize an animal, why not a person?
It just doesn't make sense.

If a person has been put to sleep, what pain will they feel?

And, on another level, who cares if it is humane or not? I
realize this is contrary to our legal precedents. But I just
can't get too worked up about humane treatment for, say, John
Couey.

Posted by: William Jockusch | Apr 24, 2007 5:31:41 AM

I hate to ask a stupid question, but... how hard can it be to administer a non-painful lethal injection? You're telling me there's no chemical that can easily knock a person unconscious at the first stage, allowing for administration of a lethal chemical at a following stage? What about everyday anesthetics used in general surgery?

This is a serious question -- could somebody more schooled in this area offer some commentary? I just don't understand how this is so difficult.

Posted by: bill | Apr 24, 2007 9:38:50 AM

Funny, the KCl seems to get to where it needs to go. Interesting that part works, but the other two chems don't.

Posted by: federalist | Apr 24, 2007 11:52:49 AM

Lethal Injection: What Pain? - Current Controversies Resolved
Dudley Sharp, Justice Matters, contact info, below
updated 4/24/07

Several issues have come up with regard to lethal injection.

Generally, they are:
1) The inmate 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.

Secondly, if properly administered, it cannot occur with the properties and amounts of the chemicals used and within the time frame of an execution.

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. The article 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.

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.

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.
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.

A similar article "Lethal Injection for Execution: Chemical Asphyxiation?" was published on 4/24/07. (Public Library of Science (PLoS) Medicine). 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 Harford 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."

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 their medical profession, only.

For example, both 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.

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.

The "do no harm" has no ethical effect in a non medical context, because this ethical requirement is for medical treatments, only.

The acknowledged anti death penalty editors of The Public Library of Science (PLoS) Medicine seem to agree. In their op/ed "Lethal Injection Is Not Humane" (4/24/07), 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."

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, per se, 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? 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)

Posted by: Dudley Sharp | Apr 26, 2007 4:01:02 PM

UPDATE: Orin Kerr has this thoughtful post at Volokh, which astutely explains why "it seems that there is much less to this study than the media coverage would have you believe."

I would encourage readers to read not the media coverage or blogs, but rather the actual study which is available as open-access. There is indeed much more to the study than Orin Kerr would have you believe. We analyze time to death, mechanism of death, and adequacy of anesthesia as compared to clinical veterinary practice, the only benchmark that is relevant given the paucity of human data.

Posted by: Teresa Zimmers | Apr 27, 2007 11:15:19 AM

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