

<<previous | index | next>> II. Lethal Injection Drugs I don't know the medical rationale, no. . . . Regarding the specific amounts of individual drugs, I have no knowledge as to what drug quantities were used, or why they may have differed from other states, no, I do not . . . that was beyond me.

Richard Peabody, Louisiana State Penitentiary deputy warden, responding to a question about the drugs used in Louisianas lethal injection protocol, which he helped to develop 80 Its not about the prisoner. Its about public policy. Its about the audience and prison personnel who have to carry out the execution.

Dr. Mark Dershwitz, anesthesiologist and expert witness for state corrections departments on lethal injection drug protocols 81 Thirty-six states use the same three-drug sequence for lethal injections: sodium thiopental to render the condemned inmate unconscious; pancuronium bromide to paralyze the condemned inmates voluntary muscles; and potassium chloride to rapidly induce cardiac arrest and cause death. 82 This three-drug sequence puts the prisoner at risk of high levels of pain and suffering. If he is not appropriately anesthetized, he will be awake when he is paralyzed by the pancuronium bromide and will experience suffocation when he is not able to breathe. 83 If the anesthesia remains insufficient, he will experience excruciating pain from the potassium chloride. Nevertheless, according to Human Rights Watchs research, no state which has used these three drugs for lethal injections has ever changed to different drugs. 84 Potassium Chloride Potassium chloride is the drug that causes death in an execution under current lethal injection protocols. Although the other two drugs are administered in lethal dosages and would, in time, produce the prisoners death, potassium chloride should cause cardiac arrest and death within a minute of injection. 85 While potassium chloride acts quickly, it is excruciatingly painful if administered without proper anesthesia. 86 When injected into a vein, it inflames the potassium ions in the sensory nerve fibers, literally burning up the veins as it travels to the heart. 87 Potassium chloride is so painful that the American Veterinary Medical Association (AVMA) prohibits its use as the sole agent of euthanasiait may only be used after the animal has been properly anesthetized. 88 There are less painful drugs that will cause death. For example, experts have suggested pentobarbital, which can be administered in a single injection. Indeed, this is the most common method of euthanizing domesticated animals. 89 In Oregon, which has legalized physician-assisted suicide for the terminally ill, state doctors prescribe an overdose of barbiturates like pentobarbital for their dying patients. The states medical ethics board determined that an overdose from a long-acting barbiturate was the most humane way to help someone dieit is painless, effective, and does not require the presence of a doctor at the time of ingestion in pill form. 90 According to a physician who consulted with Oregon legislators before the passage of the physician-assisted suicide bill in 1994, an overdose from a drug like pentobarbital is the best death one could give someone who is suffering. 91 Medical experts have also recommended one lethal dosage of sodium thiopental without following it with other drugs. A single injection of this drug has all the advantages and none of the disadvantages that other drugs manifest [which are] difficult, cumbersome, [and] amateurish to utilize. 92 Dr. Mark Dershwitz is a professor of anesthesiology who has been an expert witness on behalf of several states, defending their lethal injection protocols against constitutional challenges. 93 Dershwitz told Human Rights Watch that state officials have asked him about drugs other than potassium chloride that they could use to induce cardiac arrest in a condemned inmate. He said they have asked specifically about the vet option, meaning the use of pentobarbital. Dershwitz recounted for Human Rights Watch how he explained to the officials the difference between the pharmacological effects of pentobarbital and potassium chloride: The pharmacological effect of potassium chloride kills an inmate, and it happens quickly. If one uses just a large does of barbiturate, circulation will stop, the inmate will die, but it wont happen in two minutes. Electrical activity in the heart may persist for a very long time, in healthy people almost certainly for more than a half an hour. Everyone involved will have to wait a very long time for the heart to stop. 94 According to Dershwitz, no state corrections official whom he has told about the increased length of time pentobarbital may take to kill a condemned inmate has pursued using it instead of potassium chloride, even though pentobarbital is less painful. Human Rights Watch asked Dershwitz to explain why he thought corrections officials would risk using a painful drug like potassium chloride rather than a safer drug like pentobarbital; he said: Its not about the prisoner. Its about public policy. Its about the audience and prison personnel who have to carry out the execution. It would be hard for everybody to have to sit and wait for the EKG activity to cease so they can declare the prisoner dead. 95 Pancuronium Bromide Pancuronium bromide, commonly known by its brand name Pavulon, is a neuromuscular blocking agent that paralyzes all of a bodys voluntary muscles, including the lungs and diaphragm. 96 Given enough time to act, Pavulon will cause death by asphyxiation. It does not affect consciousness, however. Nor does it affect experience of pain. Without proper anesthesia, anyone given Pavulon will feel himself suffocating, but, because the pancuronium bromide prevents any movement, speech, or facial expression, he will be unable to reveal that he is suffering. 97 If the prisoner is still conscious when the potassium chloride is injected, the Pavulon will also prevent him from conveying to the executioners or the witnesses that he is experiencing pain. 98 When a patient is awake during surgery and able to recall the experience afterward, the condition is called intraoperative awareness. 99 The problem is so serious that in 2005 the American Society of Anesthesiologists issued a Practice Advisory. The advisory notes that certain conditions may increase the risk of someone experiencing intraoperative awareness, including when the anesthesia is administered intravenously (as it is in lethal injection executions) or when the person receiving anesthesia has a history of substance abuseoften frequent with prisoners. 100 Surgery patients who have been administered Pavulon or other neuromuscular blocking agents with inadequate anesthesia have reported terrifying and torturous experiences where they were alert, experiencing pain, and yet utterly unable to signal their suffering. 101 A woman who was awake but paralyzed by a neuromuscular agent during her eye surgery explained her efforts to make the surgeon aware she was conscious: I was fighting to move with every ounce of energy I had . . . and there was no acknowledgment from the anesthesiologist. 102 Once she realized that she could not convey to the doctors that she was awake, she felt: I would rather die than stay like this . . . I just dont want to be alive. I cantI cant stay alive through this. II just cant do it. 103 The danger of masked suffering because of neuromuscular blocking agents like pancuronium bromide is so great that at least thirty states have banned by statute the use of such drugs in the euthanasia of animals. 104 It is noteworthy that the AVMA has said that, [a] combination of pentobarbital with a neuromuscular blocking agent is not an acceptable euthanasia agent for animals, because of the concern about controlling the proper onset and timing of anesthetic agents and paralytic agents. 105 In other words, state corrections officials have settled on a protocol and procedure to kill their condemned inmates that is considered too risky and dangerous for the euthanasia of dogs and cats. At least some wardens are aware of the danger that an inmate may be conscious during his execution but unable to convey his pain. For example, the North Carolina warden who oversees that states executions has stated: I know there were some concerns raised that the way we were using the drugs at that time could possibly cause an inmate to become conscious during an execution. 106 In the three-drug sequence, the neuromuscular blocking agent such as Pavulon is not necessary to ensure the prisoners death nor does it reduce any suffering he may feel. Confronting a record devoid of justification for the use of Pavulon, the Tennessee Supreme Court concluded its use is unnecessary and the state has no reason for using such a psychologically horrific drug to execute [a condemned inmate] If Pavulon were eliminated from the lethal injection method, it would not decrease the efficacy or the humaneness of the procedure. 107 Asked why he included a paralytic agent in Oklahomas statute, Chapman told Human Rights Watch: Whats the problem? We could have a five or six drug protocol, I dont care. I called for the use of a barbiturate and a paralytic agent just because its better to have two things that could kill a prisoner than one. 108 Pancuronium bromide does serve a purpose, however. It places a chemical veil between the condemned prisoner and the execution team and witnesses. 109 According to Dershwitz, The pancuronium will prevent motor manifestations of physiological processes that could be perceived by witnesses as unpleasant or suffering on the part of the inmate. 110 When the potassium chloride induces cardiac arrest, it also deprives a condemned inmates brain of oxygen, which may cause an involuntary jerking of the arm and leg muscles a lay witness in the audience may misperceive that as something akin to suffering. And so the pancuronium would prevent the motor manifestation of that procedure so in my mind, the pancuronium does serve a useful purpose. 111 In short, pancuronium bromide contributes to the appearance of a peaceful-looking execution. It reassures onlookersand the publicthat all is well, regardless of what the prisoner is actually experiencing. Sodium Thiopental If condemned inmates are to be spared the intense suffering of conscious suffocation from pancuronium bromide, and the excruciating pain of potassium chloride burning through their veins, it is essential that they be properly anesthetized first. Sodium thiopental is the anesthetic administered at the start of the lethal injection execution to render the inmate unconscious before the other two drugs are injected. 112 State protocols generally call for between 1200 to 5000 milligrams of sodium thiopental, 113 amounts that far exceed dosages used in surgery. 114 If properly administered into the condemned inmates bloodstream, the amount of the drug specified in most protocols would be more than sufficient to cause unconsciousness and, eventually, death. 115 The prisoner would stop breathing on his own within a minute or two of the chemical entering his veins. 116 However, as discussed in Chapter Three below, methods for the administration of anesthesia in lethal injection executions do not guarantee that the condemned inmate will be properly anesthetized. The Failure to Review Protocols The three-drug sequence used today in lethal injections was developed almost three decades ago and then, over the following two decades, was adopted by all but one of the death penalty states. 117 Despite the passage of time, and medical advances, states have not changed this three-drug sequence. As the Tennessee Supreme Court acknowledged in 2005, while the state of the art of pharmacology has changed in the last thirty years, the chemical agents Tennessee uses to execute their prisoners have not. 118 Chapman chose the specific drugs to be used in Oklahomas prototype lethal injection protocol based on what was widely used in medical surgeries at the time. He explained to Human Rights Watch that at the time, I could not have seen that chemical agents used to induce anesthesia would change so markedly. . . . Today, I would have just not been so specific in my drug language in the protocols, so that corrections officials could use the best agents of their time. 119 Over the years, states have tinkered with certain relatively insignificant aspects of their death penalty procedures, for example, addressing how an inmate is brought into the execution chamber, 120 whether to pay their executioners in cash or by check, 121 how to accommodate media access, 122 what type of catheter to use, 123 and what time of day the execution will take place. 124 But they have left intact the three-drug protocol and the basic process of administration (described in Chapter Three). There are a few exceptions. In the mid-1990s, New Jersey corrections officials, in anticipation of the states first lethal injection execution, reviewed its lethal injection protocols. Because the state of the art is changing daily, 125 corrections officials unsuccessfully sought an amendment to the state statute to delete reference to specific lethal agents. 126 In Pennsylvania, taking note of growing concerns about lethal injections, the Department of Corrections recently retained an outside consultant to review the states lethal injection procedures. Jeffrey Beard, secretary of the Pennsylvania Department of Corrections, told Human Rights Watch that one of the options under consideration is the use of a brain monitor to assess the effect of the anesthesia before the other two drugs are administered. 127 Robert Myers, general counsel of the Arizona Department of Corrections, also told Human Rights Watch that the Department has recently decided to undertake a review of its lethal injection procedures. 128 Human Rights Watch is not aware of other states that have voluntarily, i.e. outside the context of litigation, taken steps to review their lethal injection protocols. Even when prisoners have challenged their states lethal injection protocols, public officials have resisted considering whether there are better options. In prior and ongoing litigation, states have not offered to change their drug protocols or methods of administration.



[80] Louisiana v. Code, p. 74, 86. [81] Human Rights Watch telephone interview with Dr. Mark Dershwitz, professor of anesthesiology at the University of Massachusetts, Boston, Massachusetts, March 1, 2006. [82] Of the states using lethal injections for executions, Nevada is the only state which will not publicly reveal its drug protocol. Human Rights Watch telephone interview with Fritz Schlommater, Nevada Department of Corrections, March 31, 2006. [83] Testimony of Dr. Mark Dershwitz, Reid v. Johnson, No. Civ. A. 3:03CV1039, August 30, 2004, p. 26 (And I freely admit that a person whos rendered paralyzed with a drug like pancuronium who also happens to be awake, that would be considered horrible. And those of us who routinely use pancuronium in our practice, take great pains to make sure that none of our patients are awake and paralyzed at the same time.) (Dershwitz Testimony). [84] For example, in 1999, New Jersey was facing its first lethal injection execution. The NJDOC was aware of potential problems with the drugs called for in the state statute. In 1983, when New Jersey's lethal injection statute was passed, a doctor at the NJDOC warned the NJDOC assistant commissioner that he had "concerns in regard to the chemical substance classes from which the lethal substances may be selected." The commissioner at the time, Jack Terhune, sought an amendment to New Jersey's lethal injection statute to allow the commissioner to choose better drugs if they came along. "[We wanted] a generic statement, like 'drugs to be determined and identified by the commissioner, or the attorney general, or the Department of Health'. Who knew what the future was going to bring?" The proposed amendment did not pass, and the statue remains the same as it was when passed in 1983. "New Jersey's Waltz with Death," New Jersey Law Journal, November 25, 2002, http://venus.soci.niu.edu/~archives/ABOLISH/rick-halperin/feb03/0677.html (retrieved April 4, 2006). [85] Dershwitz Testimony, p. 19. [86] See Carol Benfell, Routine but deadly drug: Potassium Chloride has Jekyll and Hyde personality, Santa Rosa Press Democrat, March 23, 1997, http://www.iatrogenic.org/potchlor.html (retrieved March 13, 2006); Americas Riskiest Drugs: Potassium Chloride, February, 24, 2003, http://www.forbes.com/2003/02/24/cx_mh_0224potassium.html (retrieved March 13, 2006). Diana Wiley, Mistakes that Kill, Macleans, August 31, 2001 (including a case where a woman witnessed her sons death when he accidentally received a dose of potassium chloride. She recounts his reactions to the drug: Please stop, he cried out. Youre hurting me, its burning, its making me dizzy.). [87] Dershwitz Testimony, p. 39-40 (If potassium chloride is given to an awake individual, in other words, before thiopental, before the heart stops, it would be quite painful because its very irritating for blood vessels.). [88] 2000 Report of the AVMA Panel on Euthanasia, 218 J. A.V.M.A., 680-681 (2001), http://www.avma.org/issues/animal_welfare/euthanasia.pdf (retrieved April 2, 2006) (2000 Report of the AVMA Panel on Euthanasia) (Administration of potassium chloride intravenously requires animals to be in a surgical plane of anesthesia characterized by loss of consciousness, loss of reflex muscle response, and loss of response to noxious stimuli.). See also Affidavit of Dr. Kevin Concannan, D.V.M., D.A.C.V.A., Page, et al. v. Beck, et al., Case No. 5:04-CT-04-BO, August 31, 2005, p. 4 (Potassium chloride is unacceptable in euthanasia protocols that fail to provide for the presence of properly trained veterinary personnel to induce proper anesthesia, assess the physical signs indicating the veterinary patients state of consciousness, and maintain an unconscious state throughout the euthanasia process.). [89] Dr. T.J. Dunn, Jr., "Euthanasia: What to Expect," http://www.thepetcenter.com/imtop/euthanasia.htm (retrieved April 14, 2006). [90] See Oregon Department of Human Services, Physician Assisted Suicide, http://www.oregon.gov/DHS/ph/pas/ors.shtml (retrieved March 1, 2006). Also, Human Rights Watch telephone interview with a physician who consulted with the state legislator and served on the state medical ethics board (and asked to remain anonymous due to the sensitivity of the issue in Oregon), Portland, Oregon, March 6, 2006. [91] Interview with an Oregon physician. [92] From an advisory paper submitted to the NJDOC from a group of New York nurses in 1983, cited in "New Jersey's Waltz with Death." The NJDOC did not follow the nurses' advice. "New Jersey's Waltz with Death." The DOC received a document from a New York nurses in 1983. [93] The states for which Dershwitz has testified include Kentucky, Maryland, Missouri, and Virginia. E-mail correspondence to Human Rights Watch from Dershwitz, March 22, 2006. [94] Interview with Dershwitz. [95] Ibid. [96] Randall C. Baselt, Ph.D., Disposition of Toxic Drugs and Chemicals in Man, Seventh Ed.,(Foster City, CA: Biomedical Publications, 2004). [97] Ibid. [98] Dershwitz Testimony, p. 75 (Counsel: Would the injection of Pavulon impede the Wardens ability to be able to say whether he sees any reaction or not on the inmates part to the drugs? Dr. Dershwitz: Well yes. For instance, if the pancuronium was the first drug given and the person were conscious when experiencing paralysis, they would have no motor or mechanical way of communicating their displeasure.). [99] According to the Joint Commission International Center for Patient Safety, Anesthesia awareness, also called unintended intraoperative awareness, occurs under general anesthesia when a patient becomes cognizant of some or all events during surgery or a procedure and has direct recall of those events. Because of the routine use of neuromuscular blocking agents (also called paralytics) during general anesthesia, the patient is often unable to communicate with the surgical team if this occurs. American Society of Anesthesiologists, Practice Advisory for Intraoperative Awareness and Brain Monitoring: A Report by the American Society of Anesthesiologist Task Force on Intraoperative Awareness, Case 5:06-cv-00219-JF, February 14, 2005 (copy on file with Human Rights Watch), p. 3 (ASA Advisory). [100] ASA Advisory, p. 8. [101] For instance, Jeanette Liska, author of Silenced Screams, describes her 1990 experience of lying paralyzed and awake on the operating table with no way of communicating her awareness to the doctors and nurses in the room: Drowning in an ocean of searing agony, I sensed the skein of my entire life unraveling, thread by thread. But I was the only one who heard my tortured screamssilent screams that reverberated again and again off the cold walls of my skull. Jeanette Liska, Silenced Screams; Surviving Anesthetic Awareness During Surgery: a True-Life Account (Council for Public Interest in Anesthesia and American Association of Nurse Anesthetists, September 2002). [102] Testimony of Carol Weihrer, Special Hearing, Code v. Cain, Case No. 138,860-A, February 13, 2003, p. 16-17 (Weiherer Testimony). Weihrer is the founder and president of Anesthesia Awareness, http://www.anesthesiaawareness.com/ (retrieved March 25, 2006). [103] Weihrer Testimony, p. 18. [104] See Alabama Code 34-29-131; Alaska Statute 08.02.050; Arizona Revised Statute Annotated 11-1021; California Business and Professional Code 4827; Colorado Review Statute 18-9-201; Connecticut General Statute 22-344a; Delaware Code Annotated Title 3, Section 8001; See Florida Statute 828.065; Georgia Code Annotated 4-11-5.1; 510 Illinois Comp. Statute 70/2.09; Kansas Statute Annotated 47-1718(a); Louisiana Revised Statutes Annotated 3:2465; Massachusetts General Laws Chapter 140 Section 151A; Michigan Comp. Laws 333.7333; Missouri Revised Statute 578.005(7); Nebraska Revised Statutes 54-2503; Nevada Revised Statutes Annotated 638.005; New Jersey Statute Annotated 4:22-19.3; New York. Agriculture and Markets Law 374; Ohio Revised Code Annotated 4729.532; Oklahoma Statute Title 4 Section 501; Oregon Revised Statute 686.040(6); Rhode Island General Laws 4-1-34; South Carolina Code Annotated 47-3-420; Tennessee Code Annotated 44-17-303; Texas Health and Safety Code Annotated 821.052(a); West Virginia Code 30-10A-8; Wyoming Statute Annotated 33-30-216. [105] 2000 Report of the AVMA Panel on Euthanasia. [106] Deposition of Deputy Warden Marvin Polk, Page, et al. v. Beck, et al., September 8, 2005, p. 15 (Polk Deposition). [107] AbdurRahmnan v. Bredesen, at al., SC of TN, No. M2003-01767-SC-R11-CV, October 17, 2005, p. 89a. The Court also found that: The method could be updated with second or third generation drugs to, for example, streamline the number of injections administered. Moreover, the states use of Pavulon, a drug outlawed in Tennessee for euthanasia of pets, is arbitrary. The State failed to demonstrate any need whatsoever for the injection of Pavulon. Ibid., p. 77a. Nonetheless, the court found against the condemned inmate, citing a lack of any visible evidence that any Tennessee inmates had ever been conscious during their executions. This is exactly the kind of proof that the use of Pavulon would mask. Ibid., p. 89-92. [108] Interview with Chapman. [109] The phrase chemical veil may have first been used in the lethal injection context by Dr. Mark Heath in 2001, in a series of speeches he gave around the United States. Human Rights Watch telephone interview with Dr. Mark Heath, assistant professor of clinical anesthesiology at Columbia University, New York, New York, April 9, 2006. Heath is a leading researcher on how lethal injections are administered in the United States. Heath also serves as an expert witness on behalf of prisoners challenging state lethal injection protocols in court. See also, Anderson et al v. Evans et. al., (case number was not yet assigned), Petitioners Complaint, July 13, 2005, p. 9. The American Civil Liberties Union (ACLU) of Northern California has filed a lawsuit on behalf of Pacific News Services seeking a permanent injunction to prevent the California Department of Corrections and San Quentin Prison from using the paralytic drug pancuronium bromide during executions, arguing that it violates the First Amendment rights of execution witnesses. Complaint for Declaratory and Injunctive Relief [42 United States Code Section 1983], (case number not yet assigned), March 8, 2006, http://www.aclunc.org/privacy/060308-chemical_curtain.pdf (retrieved April 4, 2006). ACLU cooperating attorney John Streeter said: The drug effectively creates a chemical curtain that hides what really goes on in the death chamber. In the name of freedom of the press, we are demanding that the State take that curtain down. ACLU of Northern California, Press Release, March 8, 2006, http://www.aclunc.org/pressrel/060308-lethal_injection.html (retrieved April 4, 2006). [110] Dershwitz Testimony, p. 27. [111] Ibid., p. 27-28. [112] See, e.g., Affidavit of Oklahoma Warden Mike Mullin, July 5, 2005 (copy on file with Human Rights Watch) (describing Oklahomas lethal injection procedures). [113] Floridas execution protocol calls for no less than 2000 mg per syringe [of each drug]. Florida Corrections Commission, Execution Methods Used by States, http://www.fcc.state.fl.us/fcc/reports/methods/emcont.html (retrieved March 31, 2006); North Carolinas execution protocol calls for no less than 3000 mg of sodium thiopental. North Carolina Department of Correction, Execution Method, http://www.doc.state.nc.us/dop/deathpenalty/method.htm (retrieved at April 4, 2006). [114] Interview with Heath, March 7, 2006. [115] Ibid. [116] Ibid. [117] E-mail correspondence to Human Rights Watch from Denno, March 29, 2006. [118] Petitioners Brief, AbdurRahman v. Bredesen, February 15, 2006, p. 77a. [119] Interview with Chapman. [120] Polk Deposition. [121] New Jerseys Waltz with Death. [122] See Minutes, Robert Glen Coe Execution After Action Assessment, April 27, 2000 (copy on file with Human Rights Watch). [123] E-mail correspondence to Human Rights Watch from Reginald Wilkinson, secretary, Ohio Department of Corrections, April 2, 2006. [124] Human Rights Watch telephone interview with Reverend Carroll Pickett, former death house chaplain in Texas, March 8, 2006 (Pickett notes that executions used to take place at midnight in Texas, but now take place around 6 p.m.). [125] Statement of Ronald Bollheimer, supervisor of legal and legislative affairs for New Jersey Department of Corrections, NJDOC public hearings transcript, February 4, 2005, p. 33 (copy on file with Human Rights Watch). [126] Memorandum to Howard L. Beyer, assistant commissioner, Division of Operations, Department of Corrections, from Annie C. Paskow, assistant attorney general, chief, Appellate Bureau, July 28, 1998 (copy on file with Human Rights Watch). The legislature did not pass the amendment. [127] Interview with Beard. [128] Human Rights Watch telephone interview with Robert Myers, general counsel, Arizona Department of Corrections, March 29, 2006.

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