« Monday funnies: Let's imagine who might be on Prez Donald Trump's SCOTUS shortlist | Main | Making the case that sentencing reform should (and must) include "violent" offenders »

July 27, 2015

"On the Argument That Execution Protocol Reform is Biomedical Research"

The title of this is the title of this notable and timely new piece by Paul Litton now available via SSRN. Here is the abstract:

Regardless of whether the Supreme Court rightly upheld Oklahoma’s execution protocol in Glossip, Oklahoma officials had inadequate reason to choose midazolam as the anesthetizing agent in its procedure.  Their decision is one example illustrating Seema Shah’s point that death penalty states are engaged in “poorly designed experimentation that is not based on evidence.”  Shah argues that “an important factor” causing the high rate of botched executions is that lethal injection reform is a type of human subjects research that is going unregulated.  Shah argues that research requirements, such as informed consent and IRB review, are necessary to render the research permissible.

Part I of this essay grants Shah’s conclusion that death penalty states are engaged in human subjects research.  However, it argues that if protocol reform amounts to research, it is unethical for lacking social value, even if capital punishment is justified. The purpose of this “research” is to make executions palatable to the public and, thereby, maintain support for the death penalty.  (Its purpose is not to find a painless means of killing; we already have that knowledge).  However, the state disrespects its citizens by attempting to influence public opinion by a means that has nothing to do with reasons to support its policies.

Part II provides reasons to doubt that the law and ethics of research should govern protocol reform.  Contrary to Shah’s hopes, the application of the law and ethics of research to executions will not help ensure less suffering for the condemned.  Finally, Part III argues that describing lethal injection reform as human subjects research fails to add moral or legal reasons to condemn the way in which states have conducted recent executions.  The basic problem is not that protocols represent “poorly designed experimentation,” but rather that they are poorly designed.

July 27, 2015 at 04:41 PM | Permalink


Human subject research is to improve health care. The death penalty is to kill people. It is an unrelated enterprise. Testing a new drone to kill people is not human subject research. it is military research. This is poison research. No relationship to human experimentation. Helsinki Convention and other human subject laws and conventions apply to medical research. There is a duty to not mislead in printed journals. The author is not fulfilling that duty.

Posted by: Supremacy Claus | Jul 27, 2015 4:50:52 PM

Here is ghoulish human subject experimentation on a mass scale, and a crime against humanity. Enacting laws that have not been pilot tested in a small jurisdiction, and been shown to be effective, and to have tolerable unintended consequences.

So make it illegal to download child pornography. Explode the number of child porn web sites. Enrich vicious criminal gangs in East Europe making horrific depictions of child rape. Ruin the lives of productive males who had even one image. Prosecute teens sexting images of themselves in a bath towel tucked under their arms, and showing no private parts. But always, always, with 100% certainty, increase lawyer government make jobs, in 100% of cases.

Then keep marijuana illegal, and deprive sick people of effective treatment, ruin millions of lives, enrich cartels and terrorist groups that have nearly taken out a friendly government in Mexico, after murdering 40,000 people a year. Again, as always, the lawyer gets his government make work job.

Posted by: Supremacy Claus | Jul 27, 2015 6:03:49 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB