Feature Feature

The slow death of lethal injection

BMJ 2014; 348 doi: http://dx.doi.org/10.1136/bmj.g2670 (Published 29 April 2014) Cite this as: BMJ 2014;348:g2670
  1. Owen Dyer, freelance journalist, Montreal
  1. owen_dyer{at}hotmail.com

The medicalization of execution was once seen as the solution to death penalty concerns. Instead it has only spawned new legal challenges, says Owen Dyer, and a tightening drugs embargo that now seriously threatens US states’ ability to continue capital punishment

“Please—Please—Please HELP . . . this system failure—a mistake—1 carton of 20 vials—is going to affect thousands of Americans.” This email, sent last November from a Louisiana pharmaceutical distributor to Missouri’s department of corrections, eventually persuaded Missouri to relent and return the propofol it had bought against the wishes of the drug’s German manufacturer Fresenius Kabi. Missouri’s governor Jay Nixon ordered the department to find other execution drugs, and the US narrowly escaped a catastrophic embargo of its most important anesthetic. American hospitals will continue to have access to the drugs they need to do their job. But American executioners may not, in the face of a remarkably unanimous refusal to sell from both European and US drug makers.

It is now three years since an EU ban effectively deprived the US of sodium thiopental, the key drug in the three drug protocol used in most executions since lethal injection began in 1982.

States have been forced to adopt desperate and sometimes disreputable methods to carry out scheduled executions. Prison authorities have bought drugs using employees’ credit cards, and submitted prescriptions under employees’ names. Louisiana declared itself ready to execute a prisoner, only to have a court subpoena reveal that its drugs were expired.1

Kentucky, Tennessee, and Georgia had to hand over their supplies of sodium thiopental to the Drug Enforcement Administration after it emerged that they had been illegally imported. At least two US states, Georgia and Arizona, purchased unapproved sodium thiopental from Dream Pharma, a UK distributor that operates out of the back of a London driving school. Arkansas and California have also purchased unapproved thiopental from UK sellers, while Nebraska procured a large quantity from India. All appear to have paid many times the market price.

The US Food and Drug Administration initially chose to overlook these illegal importations, but a federal appeals court ordered the agency to enforce its regulations. The foreign supply window has effectively closed.

Fourteen states have now adopted pentobarbital as a first choice or back up execution drug. Like thiopental, in large doses it can cause both anesthesia and death from respiratory arrest. But its maker, Lundbeck, restricted the supply in 2011 to deny it to executioners. Unable to obtain the manufactured product, states began buying pentobarbital from compounding pharmacies.

Compounding the problem

“It seems unlikely that this is going to be a long term solution,” says Deborah Denno, professor at Fordham University School of Law. Imminent federal regulation of compounding pharmacies, particularly the Verifying Authority and Legality in Drug (VALID) Compounding Act 2013, could seriously hinder the fly by night trade in execution drugs. Death row appeals have brought negative publicity, questioning the quality of compounded drugs and raising previous instances of drug contamination. In a recent statement, the International Academy of Compounding Pharmacies said that states “should work first with the pharmacy services providers—the companies that provide medications to prisoners within their systems—to source or compound drugs for executions before soliciting a traditional compounding pharmacy.”2

Some compounders have already refused to sell to corrections departments. Texas was embroiled in an unseemly row with a compounding pharmacist whose letter to the Department of Criminal Justice demanded they return 16 vials of pentobarbital for a refund, claiming the state had misled him. “It was my belief that this information would be kept on the ‘down low’ and that it was unlikely that it would be discovered that my pharmacy provided these drugs,” complained the pharmacist. Instead he was “in the middle of a firestorm” and “posted all over the internet.”3 Texas refused to return the pentobarbital; its existing supply had expired.

The Apothecary Shoppe, a compounding pharmacy in Tulsa, Oklahoma, was named in court papers as a supplier of pentobarbital to several states. But a federal appeal by condemned Missouri murderer Michael Taylor ended in February with the Apothecary Shoppe agreeing not to provide pentobarbital for his execution. For three previous executions, a Missouri corrections official had travelled to Oklahoma, paid in cash, and carried the controlled substance back across state lines. Taylor’s lawyers successfully argued that this was illegal.

They also criticized Missouri’s back up protocol of the benzodiazepine midazolam and the opioid hydromorphone, pointing to Ohio’s January execution of Dennis McGuire, who raped and murdered a pregnant newlywed in 1989. McGuire was the first prisoner to be injected with a midazolam/hydromorphone combination. Witnesses said he panted for air, arched his back and clenched his fists for ten minutes, and was pronounced dead at 24 minutes. Ohio has suspended executions until the autumn to review its new protocol.

Taylor’s plea for a last minute stay was denied. Missouri attorneys criticized his lawyers’ attempt to cut off the state’s access to pentobarbital, arguing that “Taylor has tried to force Missouri to use a combination of chemicals he argues is less safe, so that he may complain about it.”

“But Taylor has failed,” the attorneys wrote, because the state had located more pentobarbital from a different supplier, whose identity is protected by state law. Witnesses at Taylor’s execution said he closed his eyes and took two deep breaths as the pentobarbital was injected, then moved no more.

Midazolam and the McGuire execution

Pentobarbital, where obtainable, is widely seen as the drug most likely to survive court challenges. Midazolam, particularly in combination with hydromorphone, seems vulnerable. Pentobarbital is commonly associated with animal euthanasia. It is also used in Oregon’s assisted suicide program, although not with uniform success—at least one patient has awoken after taking a supposedly lethal dose.4

Midazolam is a sedative, not normally used to achieve surgical anesthesia. The other drug used by Ohio in McGuire’s execution, hydromorphone, is at the center of America’s prescription opiate abuse epidemic, and involved in thousands of poisonings every year.

“In the old days when they could get general anesthetic it looked like anesthesia, a comatose state,” said Jonathan Groner, professor of clinical surgery at Ohio State College of Medicine. “If you kill someone with an overdose of narcotics, they die like heroin addicts die, which is not pleasant.”

McGuire’s family, upset by the execution, are suing the state and the drugs’ maker, Hospira, who had not foreseen that midazolam and hydromorphone would be seized upon as execution drugs. Both drugs are now on Hospira’s restricted access list.

The dose of midazolam given to McGuire, 10 mg, was only twice what a man of his weight might receive for conscious sedation during colonoscopy. Florida, another state to name midazolam as part of its protocol, plans to use 500 mg in executions.5

How is such a discrepancy possible? “Because they’re playing at science, at pharmacology,” says Joel Zivot, anesthesiologist at Emory University Hospital in Georgia. “They don’t know what they’re doing, but they won’t accept that they don’t know.”

Florida executed William Happ in October. After a dramatic last minute confession—he had always maintained his innocence—Happ was injected with 500 mg of midazolam. A Reuters witness said Happ showed no visible signs of pain, but “appeared to remain conscious for a greater length of time and made more body movements after losing consciousness than people executed by the old formula which usually kills the prisoner within seven minutes.”

Ohio follows midazolam with hydromorphone, a painkiller, and Florida has used midazolam to replace thiopental as the first drug in the traditional three drug protocol that accounted for almost all lethal injections between 1982 and 2010.

Chapman’s cocktail

This protocol was drawn up over three weeks in 1977 by Oklahoma medical examiner and pathologist Jay Chapman, after state lawmakers asked him to suggest a humane execution method. Chapman chose an anesthetic, thiopental, followed by a curare-type paralytic, pancuronium bromide, and later added potassium chloride to rapidly stop the heart.

Several lawsuits alleged that, by paralyzing the prisoner, pancuronium would mask the inevitable suffering if thiopental failed to induce anesthesia. California’s de facto execution moratorium began in 2006 with one such challenge, and states began switching to a thiopental only protocol shortly before the thiopental ran out.

The inventor of “Chapman’s cocktail” has said that he would not include pancuronium today. Thiopental followed by pancuronium forms the basis of today’s Dutch euthanasia protocol, pancuronium having been introduced because prolonged death and writhing with thiopental alone distressed families. But while the Dutch protocol is usually administered by doctors and precautions are taken to ensure unconsciousness, the anonymous staff who execute prisoners in the US have wildly varying levels of medical expertise.

White coat, black hood

Chapman believed that no ethical barrier prevented doctors from administering lethal injection, and declared his own willingness to do so. In 2006 he said he “never knew we would have complete idiots injecting these drugs . . . which we seem to have.”

“No matter what drug you get, you cannot overcome the fact that medical expertise is required to set up the execution,” says Groner. “There was a case in Florida, Angel Diaz, that went badly, where autopsy showed that neither IV was in the veins, and both arms had severe chemical burns. In Ohio, the execution of Ronald Broom was stopped after they tried and failed 18 times to establish IV access.” Broom is still alive and still scheduled to die.

The identity of execution staff is invariably kept secret. States vary greatly in their requirements for medical expertise and for verification of anesthesia. Many states make no effort to verify unconsciousness; others use basic methods such as lifting the eyelids. Bispectral index monitors are unavailable—their makers refuse to sell for executions.

Denno says that most lethal injections are performed by prison staff with some paramedic training, but that doctors’ participation is greater than generally believed. Georgia and North Carolina have taken legal steps to protect participating doctors from censure by their disapproving state medical boards.

In 2006 a court ruled Missouri’s supervising execution doctor incompetent and barred him from further participation, ordering the state to find an anesthesiologist. The requirement was dropped after Missouri wrote to 298 anesthesiologists and found none willing to help.

“Lethal injection was not anesthesiology’s idea,” remarked Orin Guidry, president of the American Society of Anesthesiologists. “The legal system has painted itself into this corner and it is not our obligation to get it out.”

Anesthesiologist Joel Zivot echoes this sentiment. “Speaking as a physician, I just want to say: Leave my stuff alone. Leave my profession out of it. I’ve had patients say to me: ‘Wow, is this the stuff they kill people with?’ I think that the state is impugning me, making it harder for me to do my job.”

Back to the future

State prison authorities have proved surprisingly short of weapons to fight the embargo—many have difficulty even producing a signed doctor’s prescription for execution drugs. Ohio, Florida, and Louisiana have now failed to procure even compounded pentobarbital, and their choice to replace it, midazolam, has been added to the restricted list.

This March, Delaware became the first state to publicly abandon efforts to replace its expired supplies. Arkansas’ attorney general last year called the state’s capital punishment system “completely broken.” Citing lack of drugs and of willing medical staff, he said, “it’s either abolish the death penalty or change the method of execution.”

Many states still have the legal option of electric chair, firing squad, or hanging, and initiatives are now cropping up in state houses to return to more violent but swifter methods. None has yet passed, but these methods are not so far behind us as some imagine. The last execution by firing squad was in 2010, the last by gas chamber was in 1999, and the last hanging occurred in 1996. The last use of the electric chair was in 2013 in Virginia.

A national poll conducted after McGuire’s execution found widespread support for the death penalty at 62%, with only 26% against. But when asked about specific methods, only lethal injection, supported by 57%, had majority support.6

While state corrections authorities cling to lethal injection, public advocates of the death penalty have already moved on. Michael Rushford, president of the Criminal Justice Legal Foundation, believes the medicalization of death was a wrong turn.

“Nitrogen is an inert gas. You could put someone in a room with Ethel Merman songs and turn on the gas and they would just go to sleep. You could just lower the air pressure in a room, and—as I learned as an Air Force navigator—they would quickly fall asleep. Likewise, carbon monoxide is dangerous precisely because victims fall asleep without noticing. Rather than involve a quasi-medical procedure, training people to insert needles, a much more peaceful passing would occur with some of these methods. You eliminate all the medical questions. No doctor is going to have his career at risk, no drug company will be picketed or boycotted.”

Sodium thiopental

A short acting barbiturate general anesthetic used to cause unconsciousness in all lethal injections from the first, in 1982, until 2011. For most of that period it was the first drug injected in the standard three drug protocol. After challenges to the three drug protocol, some states switched to using thiopental alone to induce anesthesia and cause death. But US production ceased in 2009, and the EU barred sales to the US in 2011. No state retains a supply today.

Pancuronium bromide

A neuromuscular blocking agent and the second drug in the old three drug protocol. Pancuronium was intended to stop breathing and induce paralysis. It was under increasing legal challenge, as opponents argued that if thiopental failed to induce anesthesia, pancuronium would cause great suffering but prevent the prisoner from showing it. Export to the US is banned by Britain and several other European countries, rendering pancuronium and its analogues increasingly unavailable.

Potassium chloride

A metal halide salt that, in large doses, rapidly stops the heart, it was the third drug in the standard three drug protocol. It remains available but has become less relevant as states move towards anesthetic only protocols.

Pentobarbital

This short acting barbiturate, widely used in animal euthanasia, was prison authorities’ preferred replacement for thiopental, administered alone in a lethal dose. The EU has not yet banned export to the US, but several countries including Britain have, and the sales policy of principal maker Lundbeck has put the manufactured product out of reach of US corrections departments. As a result they have turned to compounding pharmacies.

Propofol

This short acting hypnotic/amnestic agent is one of the most commonly used drugs in US hospitals, and when Missouri announced plans to adopt it as an execution drug, an intense backlash from the medical community forced them to rapidly change course.

Midazolam

This short acting benzodiazepine has recently become the drug of last resort for states unable to find pentobarbital. It has been used on two occasions, one of which was the controversial execution of Dennis McGuire in Ohio, which led that state to suspend executions while it reviewed its procedure.

Hydromorphone

A derivative of morphine, the analgesic hydromorphone has been used once in lethal injection, in the execution of Dennis McGuire.

Notes

Cite this as: BMJ 2014;348:g2670

Footnotes

  • Competing interests: I have read and understood the BMJ Group policy on declaration of interests and have no relevant interests to declare.

  • Provenance and peer review: Commissioned; not externally peer reviewed.

References