Lethal Injection
Ty Alper, Counsel of Record for the amicus brief Michael Morales, et al. in the upcoming lethal injection Supreme Court case Baze v. Rees), discussed lethal injection in an online chat on December 7, 2007. Ty Alper is also the Associate Director of the Berkeley Law Death Penalty Clinic, which maintains Lethalinjection.org, a web-based clearinghouse for information about legal challenges to lethal injection. He is the author of Lethal Incompetence, published in the September/October 2006 issue of The Champion, the journal of the National Association of Criminal Defense Lawyers.
Featured Guest: Ty AlperFrom our featured guest: "I am looking forward to answering your questions on December 7. You can also submit them in advance. In the meantime, please visit www.lethalinjection.org, where we have posted answers to frequently asked questions."
Question Submitted by Lydia:
In your article "Lethal Incompetence" under #7 you state,"The strict laws and regulations governing the euthanasia of animals do not apply to the execution of human beings." Can you expound upon that statement briefly?
Ty Alper answers:
First, let me thank you all for inviting me to participate in this discussion. I will try to answer as many questions as possible, but, in the interest of time, I will focus on the questions that specifically relate to lethal injection. For more information about lethal injection, please visit the website www.lethalinjection.org.
Now, Lydia, to answer the question about animal euthanasia. Most states have regulations that mandate far greater safeguards with respect to the euthanasia of animals than these states require for the execution of human beings. For example, many states explicitly ban the use of a paralyzing drug in animal euthanasia. The paralytic is banned because of the fear that, if the euthanasia does not work properly, the animal will be unable to indicate that it is suffering. Of course, this is the same concern we have with human lethal injections. Every state has, to this point, insisted on paralyzing inmates before killing them. In lethal injections, the first drug is supposed to anesthetize the inmate, the second one paralyzes him, and the third one kills him. If the anesthesia is not properly administered but the inmate is paralyzed, he will suffer the excruciating pain of the potassium chloride without being able to indicate in any way that the anesthesia did not take effect.
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Question Submitted by Denyse:
why all the debate? the more they suffer,the better! did they take any precaution hurting these people, or chilfren? they deserve just the worst and lethal injection, even if "they suffer" is not enough! it's just too short a torture!
Ty Alper answers:
There will always be people who believe that death row inmates deserve to be tortured and/or killed in a painful and degrading manner. For these people, the facts of how prison officials actually administer lethal injection in this country will never be persuasive. I would like to think this view is the minority view, even among death penalty supporters. In any event, the Eighth Amendment to the U.S. Constitution prohibits the imposition of “cruel and unusual” punishment, and specifically prohibits, in the capital punishment context, the “gratuitous infliction of suffering.” There is nothing inconsistent with having great sympathy for the victims of violent crime, on one hand, and enforcing, on the other hand, the constitutional prohibition on cruel and unusual punishment.
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Question Submitted by K.:
...in a reference to the amicus brief recently by Mr. Alper filed, S. Gunarwardena-Vaughn of Amnesty International alludes to nonplacement of an intravenous line in the right arm of Stanley Tookie Williams and avers that a registered nurse was held responsible....my understanding of the history of lethal injections in California is that after the execution of Steven Wayne Anderson, the only remaining registered nurse on the execution team retired....the American Nurses Association absolutely and unconditionally precludes in any capacity the participation by registered nurses in any type of execution....please clarify....thank you and in peace....
Ty Alper answers:
There were registered nurses on the execution team through the last execution in California, which was Clarence Ray Allen. After the execution of Mr. Allen, the last registered nurse retired and it is my understanding that Michael Morales would have been the first person to be executed in California by lethal injection with no registered nurses (RNs) participating, only licensed vocational nurses (LVNs). Because there are no executions currently scheduled in California, it is unknown exactly what the makeup of the execution team will be. Although it is true that some medical associations take the position that medical professionals should not participate in executions, in the vast majority of states it is up to individual doctors and nurses to make that call individually. We have seen no shortage of medical professionals willing to participate in various ways in executions across the country.
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Question Submitted by Robbie:
What is your measure, or the state's measure, of determining if a person is dying a "painful" death by way of lethal injection?
Ty Alper answers:
There is no dispute, even from the expert witnesses typically presented by the states, that injecting the second two drugs of the three-drug formula into someone who is not anesthetized, would be excrutiatingly painful and unconscionable. This is how one judge in North Carolina described it: "If the [anesthesia] is not properly administered, an inmate could be conscious and suffer a very painful death from the other two lethal drugs. If not unconscious but paralysed, an inmate would not be able to move or scream while painfully suffocating or when the deadly, burning potassium chloride is injected into the veins causing more excruciating pain while stopping the heart." The issue in much of the lethal injection litigation around the country is whether states have put in place adequate, and reasonable, safeguards to minimize the risk that individuals being executed will suffer this terrible fate. The overwhelming evidence from many jurisdictions is that they have not done so.
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Question Submitted by Jessica:
I would like to ask how do medical and nursing personnel working on Americas death rows - deal with the fact that they are often called upon to participate in the willful murder of a person even though they are convicted killers?
Ty Alper answers:
Jessica, this is a good question. As I mentioned in the previous answer, many medical associations have either published opinions or ethical guidelines that condemn the participation of medical professionals in the execution process. However, for the most part, these guidelines and opinions are not binding on medical professionals. Studies and evidence indicate that doctors and nurses are willing to participate in executions. One study published in the Annals of Internal Medicine in 2001 reported that up to 41% of doctors surveyed would participate in executions. Other medical professionals believe that doctors have an obligation to participate in executions to protect against the risk of pain and suffering. Of course, doctors do participate in some states already in a variety of ways.
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Question Submitted by Edwin:
How can anyone be sure that the condemned person is unconscious if that person is paralyzed? Is there any way to be sure?
Ty Alper answers:
It is very difficult to ensure that a paralyzed inmate has reached a sufficient plane of anesthetic depth such that the administration of potassium chloride will not cause excruciating pain. To do so would require adequately trained and qualified personnel who are at the “bedside” of the individual throughout the execution. Virtually all lethal injection protocols call for the remote administration of the drugs (in other words, from another room) and no bedside monitoring by anyone trained or qualified to assess anesthetic depth. So, as execution protocols are currently designed and administered, it is impossible for execution personnel to be certain that the inmate is sufficiently unconscious.
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Question Submitted by Glenna:
How hard can it be to get it right? It is wrong to kill anyone, but if they are going to do it, can't they allow a person to just fall asleep painlessly?
Ty Alper answers:
The states have made it a lot more difficult than perhaps it needs to be. The states have thus far chosen a method of lethal injection, the three-drug formula, that has very little tolerance for error, and a great risk of imposing excruciating pain on the individual being executed. So long as states insist on using the three-drug formula, there is no “quick-fix” for getting it right. As I mentioned above, proper use of the three-drug formula requires the participation of trained, qualified personnel using appropriate equipment. Thus far, the states have been unwilling to provide this level of professionalism in their administration of lethal injection.
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Question Submitted by Ron:
Has anyone ever "survived" a supposed lethal injection? If so, what was their condition aferward?
Ty Alper answers:
I should have added in response to Glenna's question that cases that have been litigated in trial courts have presented evidence of alternatives to the current method of lethal injection that would address the significant risks created by the use of pancuronium bromide (the paralyzing drug) and potassium chloride (the killing agent). One reasonably available alternative is to use a one-drug protocol that would be an injection of just a barbiturate. This protocol would be similar to that used in animal euthanasia. Federal courts that have heard evidence of the foreseeable risks associated with the three-drug formula have suggested that the state switch to a barbiturate-only formula. Thus far, states have refused to switch to a one-drug protocol.
Ron, in response to your question, the answer is no. Even in cases where lethal injection executions were demonstrably botched, prison officials kept going until the inmate was dead. For more information on some of these botched executions, please see the brief for the petitioner in the Baze case as well as the “Q and A” on this subject, which can be found at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/QA/16.html.
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Question Submitted by Kathy Saunders:
Do you give these prisoners anesthesia before the lethal injection?
Ty Alper answers:
The first drug in the three-drug formula is an anesthetic. The issue is whether that drug is adequately administered such that the individual is sufficiently anesthetized so that he does not feel the excruciatingly painful effects of the second and third drugs. The amicus brief that the Death Penalty Clinic at UC Berkeley School of Law filed in the Baze case discusses the many reasons why there can be little confidence that the anesthetic drug is, in fact, being properly administered in many cases. See the brief.
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Question Submitted by Kurt:
How can we convince the American public that lethal injection is a barbaric tool in implementing a capital punishment sentence?
Ty Alper answers:
Kurt, I would encourage people to learn as much as they can about the realities of lethal injection. It has long been held out as a humane alternative to other methods of execution. But mounting evidence suggests that is not the case. There is a wealth of information about lethal injection at www.lethalinjection.org, including answers to many frequently asked questions.
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Question Submitted by Harold:
I read where one man said it isn't working after he had received lethal injection. How can you say this is humane?
Ty Alper answers:
I believe you are referring to the Ohio execution of Joseph Clark. During Mr. Clark’s execution, executioners were unable to place reliable IV lines. After the execution began, Mr. Clark sat up and said, “It don’t work.” Execution team members then closed the curtains and spent 40 minutes attempting to re-place the IVs, as Mr. Clark moaned from behind the curtains. Ninety minutes after the execution process began, the curtains opened to reveal Mr. Clark dead.
Mr. Clark’s execution was so disturbing that one of the witnesses to the execution, the brother of the victim in the case and someone who supports the death penalty, has said he plans to ask the Governor of Ohio to impose a moratorium on the death penalty in light of Mr. Clark’s botched execution. See http://toledoblade.com/apps/pbcs.dll/article?AID=/20070530/NEWS02/705300398/-1/NEWS for an article about the case.
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Question Submitted by John:
Ty, If the Supreme Court were to rule that only the "substantial risk of the wanton infliction of pain" standard applies, how would this affect the status of the death penalty in states where doctor participation has become a central issue? In particular, would the Morales case and other challenges continue to keep executions at a standstill in California? Thanks, John Carella San Francisco, CA
Ty Alper answers:
Thanks for your question, John. In California, what is holding up executions right now is the State’s decision to appeal a ruling that prison officials violated the Administrative Procedures Act by promulgating a lethal injection protocol without going through the public notice and comment that is required of such regulations. That case will not be affected by the Supreme Court’s decision in Baze. More generally, it is impossible to predict what specific effect Baze will have on executions in the various states. In some states, the evidence adduced will be strong enough to meet any standard that the Supreme Court announces. In other states, that may not be the case, and executions will likely resume.
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Question Submitted by Concetta Tedesco:
What states in the U.S. currently use Lethal Injection and what countries in the world currently use Lethal injecion? How are we (In AmnestyInternalional doing to abolish the death penalty in the U.S.
Ty Alper answers:
Of the 38 states that have a death penalty statute, lethal injection is the sole method of execution in 28 states, and is one of two methods in nine states. Nebraska uses only electrocution. While the federal death penalty statute provides that execution is to be carried out by the method used in the state in which sentence was imposed, lethal injection is the only method that has been used since reinstatement of the federal death penalty.
I am not aware of all of the execution methods used in other countries that practice capital punishment. For more information about the death penalty around the world, visit Amnesty’s website at http://web.amnesty.org/pages/deathpenalty-index-eng, as well as the website for the Death Penalty Information Center at http://www.deathpenaltyinfo.org/article.php?did=127&scid=30.
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Question Submitted by Martin:
Has anyone petitioned for an alternate execution method?
Ty Alper answers:
An attorney’s proper role is to represent the interests of his or her clients. In the context of litigating lethal injection challenges, the attorney’s responsibility is to challenge those aspects of lethal injection that run afoul of the Eighth Amendment’s prohibition against cruel and unusual punishment. It is not the attorney’s responsibility to provide alternative methods of execution that would be safer than current lethal injection procedures.
That said, as I mentioned above, the cases that have been litigated in the trial courts have presented evidence of alternatives to the current method of lethal injection that would address the significant risks created by the use of the three-drug formula. So far, the states have resisted changing their protocols in any significant way. In Tennesseee, for example, an executive commission recommended that the state use a one-drug protocol similar to that used in animal euthanasia. Nonetheless, the Commissioner of the Tennessee Department of Corrections rejected the committee's suggestions. He admitted that he did so because he was worried about the "political ramifications" of changing the protocol.
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Question Submitted by Brian:
Where to states get the drugs they use in lethal injections? And isn't it illegal to administer drugs for something other than their intended purpose?
Ty Alper answers:
In general, prison pharmacies procure the drugs just as they procure any other medication and store them. This is the case in California, for example. Regulation of the uses of drugs is generally a federal perogative. The federal government has chosen not to regulate the use of these drugs in executions, perhaps because the federal government uses the same drugs in federal executions.
One interesting note is that litigation in California uncovered the fact that "substantial" quantities of thiopental, the anesthetic drug used in exectutions (which can be highly addictive in small doses), had gone missing from the San Quentin prison pharmacy. The federal judge presiding over the case suggested that a criminal investigation may be necessary to investigate the possible theft of thiopental by members of the execution team. What this brings to light is the fact that, in many instances, the prison employees tasked with carrying out executions - and who are responsible for ensuring the proper delivery of the anesthetic drug - are often unqualified, untrained, and unreliable. For more examples, see the amicus brief that the Berkeley Law Death Penalty Clinic filed in the Baze case.
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Question Submitted by Yael:
Could you please discuss, if any, of the role the inmate has on their own death sentence before their execution? By this, I mean does the person have any legal rights regarding how humanely (or rather inhumanely) they are killed? Do they have any say in how their death sentence is so violently carried out? Thank you!
Ty Alper answers:
Death row inmates can challenge in court the means by which the state seeks to execute them. Courts and legislatures have imposed strict procedural guidelines on how these challenges can be brought, and many inmates never get their "day in court" to challenge the constitutionality of the means by which the state executes them. But some inmates have successfully challenged the administration of lethal injection in state and federal trial courts, and have uncovered what one federal judge in California referred to as a "pervasice lack of professionalism" in the development and oversight of the lethal injection process.
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Question Submitted by matt:
Has the AMA (and other medical associations) prohibited doctors from participating in state executions?
Ty Alper answers:
The American Medical Association (AMA) has not taken a position on the death penalty. However, the AMA’s Code of Ethics (Ethical Guideline E-2-06) prohibits physician participation in executions. However, this guideline is not binding on individual physicians. The AMA does not have disciplinary authority over physicians who participate in executions. As a result, physician participation is currently a matter of personal ethics for each individual physician. Many doctors believe, contrary to the AMA’s position, that it is their ethical duty to participate in executions in order to ensure that they are performed properly. And some states even have statutes that protect doctors who participate in executions from any licensing consequences as a result of their participation.
There are medical professionals, including anesthesiologists, who have expressed a willingness to participate in executions by lethal injection. See, for example, David Waisel, Physician Participation in Capital Punishment, 82 Mayo Clinic Proceedings 1073, 1078 (2007) (discussing risks inherent in the three-drug formula and arguing, from the perspective of a physician, that doctors should participate in executions); Atul Gawande, When Law and Ethics Collide – Why Physicians Participate in Executions, 354 New Eng. J. of Med. 1221, 1229 (2006) (reporting reasons why doctors participate in executions and describing interviews with four doctors and one nurse who have participated in at least 45 executions); Neil Farber et al., Physicians’ Willingness to Participate in the Process of Lethal Injection for Capital Punishment, 135 Annals of Internal Med. 884, 884-890 (2001) (reporting that 41% of doctors surveyed would participate in executions and concluding that “[d]espite medical society policies, many physicians would be willing to be involved in the execution of adults”)).
This willingness to participate is not merely theoretical, as doctors participate to varying degrees in many states’ executions. Examples include Dr. Doe, who prepared the drugs, inserted the IV, and supervised executions for Missouri and the federal government; doctors who recorded vital signs and declared death in California; doctors who have examined inmates’ veins for IV suitability in Alabama and other states; and doctors such as Dr. Mark Dershwitz, who have assisted states in designing or revising their execution protocols.
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Question Submitted by Robbie:
Thank you for answering my first question. I have a follow up, if the person that is being executed has been administered anesthesia properly with the first injection, do lethal injection still constitute "cruel and unusual" punishment if he or she are unable to feel pain thereafter?
Ty Alper answers:
Thank you all for such excellent questions. I'm sorry we do not have any more time. In answer to your last question, Robbie, there is no easy answer. For those who believe that all executions constitute cruel and unusual punishment, any lethal injection, even done humanely, violates the Constitution. In the context of court challenges to the administration of lethal injection, however, a "humane" execution is one that does not cause any unnecessary pain to the individual being executed. The three-drug formula employed in almost all jurisdictions can result in humane executions - under that definition - but only if administered properly, with the precision and care that the use of such drugs requires.
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