"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, May 02, 2007

Lethal Injection Fracas

Having witnessed an execution up close and personal, I can attest that there is no sign of any discomfort whatsoever on the condemned prisoner. He goes out in a slumber, unlike his victim who usually suffered enormously from a bullet or a knife tearing through his or her flesh or in some other inhuman fashion.

Yet the anti DP lobby's latest trick is to suggest that lethal injection is cruel and usual and violative of the constitution's 8th Amendment. They point to a botched procedure here or there and extrapolate that no state reliably uses lethal injection. Lately, a disingenous "study" purports to show that inmates suffer asphyxiation during the lethal injection process.

This is all very ironic, of course, since the entire reason we have recourse to lethal injection is the idea that it is less painful than the clearly constitutional methods of electrocution, gas chamber, hanging, or firing squad.

Of course we cannot grant the unstated premise of the abolitionist lobby that death should or must be a pleasant, totally pain-free process. The suggestion that it is somehow "cruel and unusual" to inflict anything other than a totally pain-free death is an idea without precedent or support as a matter of constitutional law.

Moreover, the latest "study" is full of political commentary and the authors actually had to pay to have it published. More problems with this study are raised here.

While no one denies that we should have protocols that are adhered to in administering the death penalty, it is not the case that lethal injection unduly inflicts more pain than is strictly necessary to accomplish the execution. It is in fact certainly less painful than some of the former methods widely used in this country, none of which were found to be unconstitutional.

1 comment:

dudleysharp said...

Lethal Injection: Current Controversies Resolved
Dudley Sharp, Justice Matters, contact info, below
updated 5/11//07
 
Several issues have come up with regard to lethal injection.
 
Generally, they are:
1) The murderer 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. There is speculation.
 
Secondly, if properly administered, it cannot occur with the properties and amounts of the chemicals used and within the time frame of an execution.

Thirdly, no one has explained how the first drug could have worn off, within the time frame of execution. Or, how is it that the first drug was, somehow, improperly administered, but the second and third were not, when using the same lines and procedures?

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 (Volume 365, 4/16/05). A follow up article, by essential the same group of researchers, published a similar report in PLoS Medicine on 4/24/07.

The articles 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.  Nothing.
 
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.

Does anyone not know this?

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. And this?
 
Dr. A. Jay Chapman, the former Oklahoma Medical Examiner, who created the protocol, consulted a toxicologist and two anesthesiologists. He states the obvious " ' . . .it didn't actually require much research because the three chemicals - a painkiller, a muscle-paralyzing agent and a heart-stopper - are well-known to physicians.' 'It is anesthetizing someone for a surgical procedure, but simply carried to an extreme.' 'If it is competently administered, there will be no question about this business of pain and suffering.' "("Lethal Injection Father Defends Creation", Paul Ellias, Associated Press, 5/10/07)

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. 
 
The follow up research/article is "Lethal Injection for Execution: Chemical Asphyxiation?"(Public Library of Science (PLoS) Medicine, 4/24/07). 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 Hartford 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." 

NOTE: I think they had and knew the whole story. They just didn't include it in their report(s).
 
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 the medical profession, only, and to  patients, only. Judicial execution is not part of the medical profession  and death row inmates are not patients.
 
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. Of course, there have been medical experiments without consent and, even, today, they continue ("Critical Care Without Consent", Washington Post, May 27, 2007; Page A01).
 
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. And, they should. There are obvious moral and ethical nuances and we should consider and pay attention to them, as is done within the medical profession.
 
The "do no harm" has no ethical effect in a non medical context, because this ethical requirement is for medical treatments, only, and for patients, only.
 
The acknowledged anti death penalty editors of The Public Library of Science (PLoS) Medicine agree. 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."  ("Lethal Injection Is Not Humane", PLoS, 4/24/07)

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 ethical connection between medicine and lethal injection. 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? Of course. 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.
 
Any participation in executions by medical professionals should be a matter for their own personal conscience.
 
A side note:

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 are very few errors in lethal injections which can be attributed to personnel error. The simple fact is that, , if necessary,  non medical personnel can be properly trained to mix and administer the chemicals used in lethal injection.  But, it isn't necessary.
 
It appears that some 500-1000 innocent patients die, every year, in the US, due to some type of medical misadventure, with anesthesia. (1)

I am unaware of evidence that shows criminal justice professionals are more likely to commit critical errors 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 2005-2008
 
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.