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The Three-Drug Death Penalty Cocktail is a Mess

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If you want ammunition against America’s death penalty, read two reports in Friday’s New York Times about the latest execution in Oklahoma. One is a grim description of what happened when Clayton Lockett was given a lethal injection on Tuesday, the other an analysis of the common three-drug protocol used to kill Lockett and inmates in several other states.

Since Lockett died of a heart attack 43 minutes into the botched attempt to kill him, it’s been revealed that he was actually tasered for resisting the preliminary X-rays apparently required for execution. That’s the first time any condemned prisoner has been shocked before they’ve been injected. Further, the initial reports that a vein in Lockett’s arm collapsed were untrue. Instead, a phlebotomist or a doctor—it’s not clear which one, but doctors aren’t supposed help with executions—tried to insert a line into Lockett’s femoral vein, which is in the groin. That’s a dicey thing to do, and apparently failed, leaking drugs into his tissues:

But Oklahoma officials said that problems with the IV delivery, not the drugs themselves, accounted for Tuesday night’s problems.

Anesthesiologists said that while they sometimes use a femoral vein accessible from the groin when those in the arms and legs are not accessible, the procedure is more complicated and potentially painful.

Putting a line in the groin “is a highly invasive and complex procedure which requires extensive experience, training and credentialing,” said Dr. Mark Heath, an anesthesiologist at Columbia University. Oklahoma does not reveal the personnel involved in executions.

“There are a number of ways of checking whether a central line is properly placed in a vein, and had those been done they ought to have known ahead of time that the catheter was improperly positioned,” Dr. Heath said.

Dr. Joel Zivot, an anesthesiologist at the Emory University School of Medicine, said that the prison’s initial account that the vein had collapsed or blown was almost certainly incorrect.

“The femoral vein is a big vessel,” Dr. Zivot said. Finding the vein, however, can be tricky. The vein is not visible from the surface, and is near a major artery and nerves. “You can’t feel it, you can’t see it,” he said.

Without special expertise, Dr. Zivot said, the failure was not surprising.

And what’s below is an understatement:

David Dow, a death penalty appellate lawyer in Texas, said that prisoners sometimes resist leaving their cells, but that “it’s not something that happens regularly.” He expressed surprise that the medical staff administering the drugs did not have a second vein ready in case of problems with the first. “For a state that executes people,” he said, “they are awfully bad at it.”

This has been a mess. Not only was the execution botched, perhaps by incompetent technicians or doctors, but Oklahoma has been releasing incorrect information on what happened, and correcting it only bit by bit. The state should have waited for a full investigation, and then made it absolutely public.  The secrecy is unwarranted.

If Lockett’s execution isn’t “cruel and unusual punishment”—a violation of the Constitution’s Eighth Amendment—I don’t know what is.  Because high-quality American and foreign pharmacies refuse to furnish drugs for this form of retributive execution, there’s not much quality control, and no guarantee of the dosage and purity of the drugs used (Oklahoma, of course, refuses to release that information and the source of the drugs). Also cruel and unusual is the customary use of three drugs in sequence instead of just one.

The Times’s other article addresses the obvious question: do we really need to use three drugs given that large animals are peacefully euthanized with a single chemical (many of us have done this to our pets), and terminal patients in Switzerland go gently after a single drink of pentobarbital? Doctors in other places will often give an overdose of morphine to terminal patients, knowing it will kill them. Clearly, a single drug—a barbiturate—will suffice, and in fact has been used in several states:

Physicians have long known that large doses of single drugs — certain sedatives or anesthetics — can take a life painlessly, and with far less distress than the three-drug cocktail causes if the injection is botched.

Since 2010, more death-penalty states — Oklahoma not among them — have moved to use single drugs for lethal injection. Even critics of the death penalty say most of those executions have gone more smoothly than ones involving multiple drugs.

Barbiturates, including sodium thiopental and pentobarbital, infused into the bloodstream can quickly make a person go deeply unconscious, stop breathing and die. Dr. Mark J. Heath, an anesthesiologist at Columbia University and an expert on lethal injection, said that high doses of pentobarbital were routinely used to euthanize animals, from pet rabbits to beached whales.

Barbiturates alone have been used in 71 executions, in Arizona, Georgia, Idaho, Missouri, Ohio, South Dakota, Texas and Washington, said Jennifer Moreno, a lawyer with the Death Penalty Clinic at Berkeley Law School.

Even though Dr. Heath opposes lethal injection, he said, “I have not seen a single complaint, not an unhappy warden or family or anybody, from the single-drug barbiturate approach.”

The three-drug cocktail is a mess. The first one is supposed to render you unconscious, the second paralyzes your breathing muscles, and the third stops your heart. But if the first one doesn’t work well, you’ll be conscious while the second and third do their things, which can be horribly painful if you’re conscious.  

So why are we even using the three-drug protocol? Apparently from inertia alone. The cocktail was developed in 1977 by Dr. Jay Chapman, Oklahoma’s medical examiner, and has been continued simply out of habit. In fact, Chapman now maintains that he’d recommend a single injection of barbiturate instead.

The problem is not just that, though: it’s also that the drugs are given intravenously, with needles inserted by people who don’t seem to know what they are doing. The three-drug sequence can be eliminated in favor of a single more humane injection, and the drug doses can perhaps be fixed. But what can’t be fixed is the inexperience of people inserting the lines, and the absence of doctors supervising the process (it is rightly considered unethical for a physician to do more at an execution than pronounce the inmate dead). What also can’t be done is to resurrect an executed inmate who is innocent. A new report in the Proceedings of the National Academy of Sciences suggests that more than 4% of people on death row were convicted falsely. It goes without saying that once you’re dead, exculpation is useless. Are we willing to accept a figure of 1 in 25 prisoners being killed by mistake?

Further, like innocent people sentenced to death, bungled executions aren’t uncommon. The Death Penalty Information Center tallies 44 botched executions since 1977, when U.S. states began killing people again after a decade’s respite. Have a look, but be warned that the descriptions are graphic and horrible. But if you’re in favor of the death penalty, even by lethal injection, you’re obligated to see how things can go wrong.

Yet there are alternatives that get the state out of the killing business, allowing someone falsely convicted to go free. These alternatives are also cheaper than execution, which is always preceded by long and complicated legal battles. A common substitute is a sentence of life without parole in prison or a psychiatric facility.  But while that may be necessary for incorrigible offenders, or those who have incurable mental illness, we shouldn’t automatically see it as the best alternative to a death sentence.  In countries like England, nearly all life sentences include at least a possibility of parole after a long stint in jail. In contrast, in the U.S. every prisoner sentenced to life without parole has died in prison. Are we certain there’s a benefit in keeping old people locked up?

If you’re a determinist like me who feels that criminals, acting under the influence of their genes and environments, simply had no choice about committing their crime, then you see only three rationales for punishment. These are deterrence, rehabilitation, and removal of offenders from society. Retribution isn’t included since it does nothing but cater to an outmoded desire for revenge. And even if you’re not a determinist, government-sanctioned revenge killing simply isn’t rational.

None of the three goals are met by capital punishment, and maybe not by automatic life-without-parole sentences, either. If you don’t think a murderer had a free “choice” about what he did, then you must rethink how to deal with his transgression. The reason we don’t figure out what forms of punishment are optimal for deterring others, rehabilitating offenders, or keeping them away from society until they become harmless, is because those things are hard to do. They take empirical study—scientific analysis. But this is what we must do if our judicial system is to be both rational and humane, and fall in line with every other First World country (except Japan) that eschews executions. What we shouldn’t do is keep inflicting cruelty simply because that’s what we’ve always done.