The Lethal Injection Debate

On Jan. 8, 2008, the Supreme Court heard the oral argument in Baze v. Rees challenging the constitutionality of the commonly-used “three-drug cocktail” method of lethal injection. Is this procedure, as it is often carried out, “cruel and unusual punishment?” The justices’ highly charged discussion is the first time the Supreme Court has grappled so intimately with the intersection of medicine and law since the abortion debate in Roe v. Wade in 1976.

The ethical issues at stake are wide-ranging and complicated as the justices deliberate whether the three-drug “death cocktail” currently used in Kentucky carries a risk of pain and suffering sufficient to violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Originally conceived in 1977 and first used in Texas in 1982, the protocol is comprised of sodium thiopental (a sedative), pancuronium bromide (brand name Pavulon, a paralytic), and potassium chloride (to stop the heart). Variations of the Kentucky protocol are used in most of the other 36 states that carry out the death penalty. Due to improper preparation or administration of the lethal drugs, virtually all of these states have now imposed a de facto moratorium on lethal injection. This is in the wake of several high-profile cases that focused attention on the excruciating pain and suffocation experienced by inmates.

As the prospects of the roughly 4,000 prisoners on death row across the country hang in the balance, public opinion on the death penalty remains sharply divided. Aside from the profound debate over capital punishment, equally pressing are the complex ethical issues that center on the lethal injection procedure itself. These include the ethical responsibilities of medical professionals called to participate in execution procedures, the challenges to First Amendment liberties to witness and gather information about the lethal injection procedures, and the risk of violating basic human subjects’ research principles as states prepare to alter their injection protocols.

For the medical professional community, the ethical dilemma is clear. While nearly all state execution protocols require some level of participation of a trained medical professional in the execution procedure, the American Medical Association and numerous other professional medical societies have condemned any participation of physicians and nurses in capital punishment. In 2006, the president of the American Society of Anesthesiologists famously wrote, “American society decided to have capital punishment as part of our legal system and to carry it out with lethal injection ... The legal system has painted itself into this corner, and it is not our obligation to get it out.” Yet medical professionals who participate in the procedure argue against abandoning the condemned inmate on the execution gurney—that is, if a prisoner is to die a potentially agonizing death by order of the state, then it is the medical professional’s ethical duty to ensure that the procedure is carried out as humanely as possible.

In addition to the ethical dilemma faced by medical professionals, the news media and civil liberties groups have drawn attention to ethical and constitutional concerns arising from the lethal chemicals themselves. In 2005, the American Civil Liberties Union in Tennessee objected to the administration of pancuronium to the inmate on the execution gurney, pointing out that the paralytic drug “would act as a ‘chemical veil,’ to prevent those witnessing the execution from knowing whether the condemned inmate is suffering excruciating pain.” The ACLU in Nevada filed a similar petition in 2007 challenging the constitutionality of the lethal injection procedure because the effects of the muscle paralytic would interfere with the prisoner’s ability to react, thus compromising the news media’s First Amendment right to report the actual effects of the drugs. Indeed, the use of a paralytic drug to sanitize the appearance of the execution proceedings presents alarming ethical and legal implications for the accurate reporting of news.

Alongside the ethical issues confronting the news media and medical professional communities, the scientific research community must confront the possible violation of National Institutes of Health research guidelines as lethal injection protocols are researched and adjusted in response to litigation. Subpart C of the Common Rule (45 CFR 46) states, “In as much as prisoners may be under constraints because of their incarceration which could affect their ability to make a truly voluntary and uncoerced decision whether or not to participate as subjects in research, it is the purpose of this subpart to provide additional safeguards for the protection of prisoners involved in activities to which this subpart is applicable” (45 CFR 46.302). Research on prisoners is mostly limited to minimal risk research defined as ”the probability and magnitude of physical or psychological harm that is normally encountered in the daily lives, or in the routine medical, dental, or psychological examination of healthy persons.” How would research on lethal injection protocols even begin to be carried out on this population?

As the Supreme Court prepares to announce its opinion on the Baze case this spring, impassioned public and academic discussion will surely continue on this controversial topic. Amid the current intense medical, legal, and political scrutiny focused on lethal injection protocols and procedures, we feel it is imperative that members of society not abandon a segment of our society condemned to face the last act that the government can inflict on a man or woman.

Ruth Fischbach is a professor of bioethics at the College of Physicians and Surgeons and the director of the Center for Bioethics. Jennifer Woo is Dr. Fischbach’s research assistant.