Transcript
Robert Dunham 0:01
Hello, and welcome to Discussions with DPIC. I’m Robert Dunham, the Executive Director of the Death Penalty Information Center. In this episode, we’ll be speaking with Dr. Joel Zivot, an anesthesiologist at Emory University Hospital in Atlanta, and an expert on lethal injection. Dr. Zivot is also an Associate Professor of Anesthesiology and Surgery in the Emory School of Medicine and an Adjunct Professor in the Emory School of Law and the Emory Institute of Liberal Arts. He also holds a Master’s degree in Bioethics from Emory University. Dr. Zivot lectures and writes on issues related to end of life care, physician assisted death, and the ethical conduct of physicians and lethal injection. After a series of botched executions in the middle of the 2010s, he was asked to examine the autopsy reports of prisoners executed by lethal injection. His findings were the subject of September 2020 review by National Public Radio, of the autopsy results of more than 200 executed prisoners. The results shattered the popular myth that lethal injection is a humane and painless execution process. Dr. Zivot has been an expert witness for death row prisoners in a number of states in their constitutional challenges to the lethal injection process. Dr. Joel Zivot, thank you for joining us on Discussions with DPIC.
Joel Zivot 1:13
Thank you for having me.
Robert Dunham 1:14
Before we go further, I just like to caution our audience, that some of the details of autopsies we’ll be discussing, and what a prisoner may be experiencing during execution are disturbing and may not be appropriate for some listeners. However, it is essential to discuss these details to have a clear understanding of the execution process. And second, because of ongoing litigation, we will not be discussing Dr. Zivot’s testimony in those lethal injection cases. Dr. Zivot, first of all, looking at execution autopsies seems a little bit on macabre side. What brought you into that subject? And were you surprised by what you found?
Joel Zivot 1:51
The way that I find my way here was I was given a file and the question that I was asked to look at was the blood levels of sodium thiopental, at the time. This question has been raised before in the past is whether or not there is a corresponding blood level that could be found in the bodies of people executed by lethal injection that would correlate with what was felt to be the toxic dose of that drug. A paper actually published in The Lancet years before brought the question as to whether or not the amount of circulating drug would be sufficient to cause death. So I was handed this series of autopsies looking at this question. When I reviewed the autopsies, I found first of all, that the autopsy is provided information more than just blood levels, but also a regular autopsy that examines the body. The thing about an autopsy is an autopsy is probably the best examination a person ever undergoes, but of course, it’s after death. There’s a lot of detail there that I naturally was curious to evaluate. And one of the things that immediately struck me and was a surprise was something happening to the lungs. I didn’t anticipate finding this, I found, to my surprise, that the weight of the lungs was about twice normal of what I would expect to have happened if death was instantaneous. So in a circumstance of what I think was the common belief that lethal injection killed in a way that was rather sudden and immediate, the body of an examined person should be basically pristine, there should be no organ damage that is seen. But here in the series was a fairly extensive finding of these heavy lungs full of fluid. There were other organ systems, by the way, they were also damaged, but the lungs really stood out as something that I had just not expected to see.
Robert Dunham 4:01
So that sounds like a much slower death than people anticipated.
Joel Zivot 4:06
I think that the reason why lethal injection continues to seem to be the sort of death that is contemplated in the setting of capital punishment is that it appears when one witnesses it, not much really happens. It’s it’s rather bloodless, so to speak, there’s not much to see when compared to other methods of execution and I think that that’s why it’s hung on so long and why the debates about what exactly is occurring have been so relevant. It’s very difficult to see anything in lethal injection with your eyes. And as a physician, I always thought that something was up that there was something amiss here, but I could never determine and put my finger on it until I reviewed the office. autopsies, it was the autopsy evidence that was so profound and important here, it really, I think, confirmed my worst fears about what was actually happening here.
Robert Dunham 5:13
Dr. Zivot, many legislators who moved to lethal injection, from forms of execution, such as the electric chair, hanging, the gas chamber, and the firing squad, they did it, because they thought it would be less inhumane, and relatively pain free. Your autopsy findings suggest that that’s very different, what actually happens. So what do the results of the autopsies tell us about what the prisoners actually experience during an execution?
Joel Zivot 5:42
The question that I am asked, have been asked is whether or not executions by lethal injection are cruel and cruel is a very complicated idea. I think even though we might naturally understand what we think is cruel, when one considers other forms of execution, it’s really the outward experience of the witness that really is actually matters the most, that although the executed person, of course, is what we really are concerned about, the only way to really know that is to engage the empathy of the witness. And so with other methods that you’ve explained, it’s easy to see why a witness might find those methods disturbing. Again, lethal injection didn’t show much. So what I’m certain the autopsy actually reveals is that the kind of death that is actually occurring is, first of all, much slower, so it’s not this instantaneous death. And apart from the slowness of death, it’s also what is actually happening to the body as a person dies. What is not happening is that a person falls off to sleep, and then dies in one sleep, so to speak. What is in fact happening is that the drug is circulating through the lungs, and the concentration of the drug or as a direct effect of the drug, the drug begins to destroy the delicate tissues that are within the lungs. The lungs are designed to keep air on one side and blood on the other through very thin membranes. And that’s the normal way that lungs work. Here, I believe it is a direct effect of the chemicals themselves that destroy the barrier that separates the the air from the blood, and blood and fluid begin to rush into the lungs as a person is dying. Now to put this in perspective, imagine the sensation you experience when you drink a glass of water. And by mistake, the water enters your breathing tube, your trachea, instead of your esophagus. The experience of incorrect swallowing as it may be described of water entering even a small amount of water entering your trachea is quite a terrible and painful experience, you begin to cough and hack and feel short of breath, and all of those things are now happening to the inmate as they die. So now the fluid is filling into the lungs and causing that terrible, uncomfortable drowning and choking sensation and that is the kind of death that is occurring in the setting of lethal injection.
Robert Dunham 8:40
Most states are using a three drug procedure, that first anesthetizes the prisoner then paralyzes him or her and then ultimately stops the heart. I’d like to go through the process one type of drug at a time to tell our listeners what’s now known about what that particular drug or class of drugs does, and how it affects the prisoner who’s being executed. What do the autopsy results tell us about the first drug, the anesthetic?
Joel Zivot 9:11
Well, I’m going to push back a little bit before I answer that, because I think it’s important to clarify that what is happening here in no way is a medical act. And so when we talk about the the protocol, or the cocktail of these of a combination of these drugs, in my hands, these same drugs, of course are used in a therapeutic sense to treat patients. Here now, the state is taking these same drugs and repurposing them as poison — so these are poisons now. And so it’s important that none of this be regarded as therapeutic in any way — this is killing. It’s killing with chemicals, chemicals that can on the one hand be medicine, or on the other hand can be poison. And when you say an anesthetic, I think I would push back on that too, because even though the first drug is felt to or is intended rather to create a kind of state of stupor, a state of unawareness that really can’t be known that certainly some drugs we know from experience are better at creating a state of stupor than others, but it’s still a guess. It’s a guess even in anesthesiology, it’s a bit of a guess. Now, we use other methods to be sure that we’re guessing correctly based on experience and monitoring, but here in execution, it’s entirely a guess. And there’s no way ever of knowing because you can’t ask a person who is now dead — what did they recall? And what did they know? But the first drug here is supposed to create a state of unconsciousness, unresponsiveness and a lack of awareness of their present circumstance, that’s at least the intention of the first drug into three drug cocktail.
Robert Dunham 11:11
The NPR study found evidence of pulmonary edema, the phenomenon that you were describing earlier in 84% of the autopsies. Is that related to this first drug?
Joel Zivot 11:27
I believe the answer to that question is yes, and the reason why I believe that is because execution in this country, really, there are two different methods: there is the single drug method and there’s the generally, the three drug method, and I’m seeing the the lung congestion, when pentobarbital alone is used. So if it was some function of the combination of medications, then one might speculate that in the executions, where there’s only a single drug, that there would be no lung damage, but even in the single drug executions, we’re seeing this, you know, commonly this phenomena of lung injury. So is there some other additive effect of the other drugs? Possibly. The other thing, I guess that was interesting is that not only is it seen in the pentobarbital single injection, but in the use of midazolam, as well. And there are reasons why both midazolam and pentobarbital alone could be the cause of this lung, lung injury that that seen in both cases.
Robert Dunham 12:37
Now for our listeners, midazolam is a drug that many states turn to, after the initial drug that they had been using sodium thiopental, went out of production. And midazolam has been implicated in a number of what people are describing as botched executions, which for purposes of lethal injection, isn’t based so much on what the drugs are doing to the body, but what witnesses are able to, to see. And with midazolam, there have been instances of prisoners, in one case in Arizona, flopping about and gasping for a period of almost an hour. So with that drug, are you noticing other effects internally? Or is the difference between them as a the first drug, simply one of appearances?
Joel Zivot 13:32
I think that midazolam and pentobarbital are different classes of drugs, it’s important to understand that and they have some overlap in what they can do. Pentobarbital is a drug in what’s called the barbiturate class and those drugs, there’s some lin- I guess, linear relationship between dosage and effect to a certain degree, that the more you give, you know, the more effect you you might see. There’s some limits to that too. Midazolam is a drug in the benzodiazepine class. People might have heard of drugs, like Valium, or Xanax or drugs like that. Those are, are the same drugs in that same class. Those drugs work differently, they work on what’s called a receptor, like a lock and a key. And there’s only certain number of locks and the drug is the key. And once the the drug occupies the lock, that adding additional drug has no effect. So there’s what we call a ceiling effect in terms of its of its property. And I can tell you that midazolam, as a single agent, to be used to induce an anesthetic state is just not done in my world. Now, if you look at the package insert of midazolam, it will describe the use of midazolam as an induction agent, but I’ll, I can assure you that in the operating room or when the drug is used for medical purposes, it’s widely understood that it’s a poor drug for this reason — and the reason is because it doesn’t provide that kind of dense, complete, insensate mental state that one, one wants. Be that as it may, both midazolam and pentobarbital are used in dosages that have no medical precedent. And I think it’s the dosages themselves, that in very large dosages, they exceed any sort of, and I use this term, very carefully, any kind of therapeutic or intended effects, and they become poisonous in a way that was not understood until now, that because there’s been no precedent of using these kinds of, in my hands, medicines, in a kind of dosages that are used in lethal injection.
Robert Dunham 15:59
The second phenomenon that you discovered, in through the autopsy data is the presence of froth foam in some of the executed-prisoners lungs’. Sometimes that froth and foam extended from the lungs into the airways themselves. One judge in Ohio said that it produced a sensation similar to waterboarding. How often did you see this evidence of frothing and foaming? And what does it mean that a prisoner has got it in his or her lungs?
Joel Zivot 16:34
The froth effect was just seen very commonly, you know, it was it was seen, I think, maybe half the time, and it was seen, in addition to the lung congestion. Some patients when they, and again, I’m sorry to see the problem here is that I keep wanting to think about this as a doctor. So I have to apologize. And I use the word patient here, because an inmate is clearly not a patient. So some inmates are getting this lung congestion, where the lungs themselves are like a sponge. And think about, say, pouring water onto a sponge. So a sponge does have a capacity to absorb a certain amount of water, before the water begins to drain around the sponge, and so it just depends on how much circulation, how much fluid has engorged the lungs before it begins to froth. So the froth is extra, if you will, it’s even more. So anyone that has froth in the lungs, also has heavy engorge fluid of fluid in the lungs for it’s actually just an even greater and excessive amount of congestion from the inmates that simply had lungs that were full of fluid. It’s overflowing with fluid now into the main airway. So it’s the most extreme example of lung congestion is what the froth indicates here.
Robert Dunham 18:17
I’m not a doctor, but when I looked at the numbers, something jumped out to me and I haven’t, I haven’t seen them with respect to the autopsies themselves, which cases they came from. We’ve got the evidence of pulmonary edema in 84% of the autopsies, we’ve got the evidence of frothing in around half of them. When I looked at the various different chemicals, it appeared that the frothing was present more frequently in the drugs that have tended to be used as part of the multi drug executions. So I’m wondering, does that indicate that there’s a relationship between this overflowing and flooding of the lungs and the use of the paralytic agent that’s the second drug in the three drug cocktails?
Joel Zivot 19:03
If I think about the way that paralyzing drugs work, I would not think that they would necessarily cause lung injury, but again, the problem here is that these drugs are being used in very, very large and non-pharmacologic, non-therapeutic dosages. So is it conceivable that the drugs the other drugs themselves, the paralyzing drug, or the potassium also caused direct, destructive effect on lungs? I could, I would speculate that the answer to that is is yes. I think that what’s challenging here is that this is not a study in the way that scientists would conduct one. These are findings and and no one would be able to to describe or to create a study that could specifically answer these sorts of questions. So one can only speculate, but the findings, the findings are not ambiguous and the findings are very striking and, and occur frequently enough that that this is not simply a series of random events. And one again can at least speculate scientifically as to why this may be occurring.
Robert Dunham 20:28
When it comes to the paralytic agent that’s used, these states in the very beginning said that was to preserve the dignity of the prisoner who is being executed, which, in a very real sense, seems to be to make the witnesses more comfortable, because they don’t see the kinds of things that we we’ve observed with a prisoner having involuntary spasms or flopping about or gasping, it prevents the prisoner from, from displaying those kinds of things. What do we know about what the paralytic agent is doing to the prisoner, himself or herself during the course of the execution?
Joel Zivot 21:10
The paralytic is, I’ve always found that to be the most disturbing choice in lethal injection and the argument that this is somehow creating dignity is a hard argument to understand. I suppose yes, if a person is moving around as they die, then that might be disturbing for those watching, but how dignity of an individual that is dying is created by paralyzing them so they can no longer move in any way and that’s what the paralytics do. When the paralytic is given, all the muscles of the body, save the heart and intestines, and the and some muscles of the eye, become frozen. So even if a person wants to move, where the brain sends a message to the arm or the leg, or to the diaphragm, which is the muscle of breathing, that cannot take place. So once the paralytic is given, all bets are off, all you see now is a person lying motionless. But let’s be clear, that the motionless state that you observe, now, I think hides the interior experience of the person that is dying. The purpose I think of taking away the paralytic has tried to be to make some sense reasonably as to what exactly we are seeing, but the paralytic changes that completely. And now a person is dying, perhaps not as a function of some direct, say toxic effect on the heart or the brain. But now what they are dying of is suffocation: they are suffocating to death, their body would want to breathe, but the paralyzing drug prevents even a single breath from occurring and so now it could very well be death by suffocation. It’s hard for me to see how that would support anyone’s dignity. But that’s what the paralytic drug will do.
Robert Dunham 23:20
Then the third drug, the drug that’s used to stop the heart, typically, potassium chloride that’s been described as liquid fire that would produce a sensation of being chemically burned at the stake if the prisoner were conscious. And there’s actually evidence from executions that were botched, in the sense that the executioner missed the vein and injected the chemical into the subcutaneous tissue — that prisoner experienced chemical burns that ran up the course of his arm. Is there anything in the autopsy results that indicates whether the prisoners who are being executed through this three drug process were likely to have been conscious at the time this third drug was being administered, and the chemical fire was coursing through their veins?
Joel Zivot 24:13
Well, certainly, inmates have, as you have stated, have actually exclaimed that they are experiencing a burning sensation. And I know with potassium chloride, it’s a necessary element in the body that is given therapeutically all the time. Potassium chloride is available as a pill, or it can be given as an injection. I prescribe injections of potassium chloride almost every day in my practice, and the amount of potassium chloride I use is very small. It’s a fraction of what’s actually given an execution. And I know that if I’m prescribing that fraction of potassium chloride, and it’s being given through an intravenous in the arm, I have to be very careful, even with that fraction, that it doesn’t cause a burning sensation because even when I use a small quantity, and I mix it with a lot of other solution to dilute it, and I give it into an intravenous, that is a reasonable intravenous in the arm, patients will complain of a sensation that can be very uncomfortable. Not only do they complain, but I can see evidence of redness. So imagine now using a very large quantity of potassium chloride injected through the arm in a vein, undiluted. And now that potassium is racing along the vein and as it’s doing that, of course, it’s burning as it goes. And by the time it reaches the heart and lungs, that burning that is occurring, will continue. And so it’s conceivable that, again, it’s some of the delicate lung injury that we see in some of those three drug cases could very well be as a consequence of potassium. So potassium will stop the heart, once it enters the heart, the heart, you know, may not contract much more. And let me also maybe just add that the point here is that if the heart stops, then there can be no fluid in the lungs. So the fluid in the lungs occurs because the heart has not stopped. So the heart continues to beat and has to push that fluid into the lungs themselves. Once the heart stops, there can be no more damage, there can be no more leakage. So when the potassium chloride enters the heart itself, and the potassium within the heart muscle rises to a certain level, the heart will stop. And that will be the end that will be death. How much of that potassium gets into the lungs? You know, it’s unclear, but the damage of course has already been done by either than the midazolam or the or the barbiturate that pentobarbital.
Robert Dunham 27:09
Now, it seems pretty clear from the autopsies that lethal injection is not the peaceful going-to-sleep-death, that states thought that it would be when they when they moved in that direction. Without getting into any of the details of the litigation, how have states generally responded to the suggestion by you and other doctors, that lethal injection is not a peaceful and humane death?
Joel Zivot 27:37
It seems that the courts have disregarded this evidence. And to be frank, I’m trying to be helpful. I’m trying to be helpful. You know, you said at the beginning that I was an expert in this field of discourse and let me tell you that as a physician, I have no business being here. I did not seek this out. And when this is done, when there is no more lethal injection, and medicine is no longer used as execution, I will be no longer involved in this question. I’m involved in this reluctantly, so I’m trying to be helpful to the court. I recognize that the court has something specific in mind and the rule is simple: It says that execution cannot be cruel. Now, once you know what is happening, once the court knows, I would say that cruelty here is a motive, not a method. The method of execution causes lung injury, significant lung congestion, if knowing that you continue to set that aside and disregard that, then that feels like cruelty to me. But so far, I’ve seen the courts seemingly set this evidence aside, and I have no explanation as to why they are doing that.
Robert Dunham 28:59
One other thing that we’ve noticed at DPIC is that when something goes visibly wrong with an execution, instead of addressing it, states have often attempted to hide the evidence, or make it more difficult for the public to detect the problems. And in 2018, we released a report on secrecy in the execution process in the United States that detailed the ways in which states are carrying out executions, and how they’ve hidden more and more of the execution process from public scrutiny. What do you make of these secrecy statutes that prevent full transparency regarding lethal injection and the different drugs that states use and what is it that people need to be seeing that they aren’t seeing in order to make reasonable judgments about whether to continue this practice?
Joel Zivot 29:49
I think that the public deserves the truth. The public deserves to know and understand exactly how the justice system works. Let me give you two examples. So in certain kinds of technical undertakings, let’s just for a second, imagine with a cold eye, that we’re looking at this purely as a technical act. There’s a technical thing that has to occur. And it has to occur in a certain sort of way. I’m now talking about execution. So let’s instead imagine that what we’re talking about is investigating the crash of an airplane. So there is an organization called the NTSB, the National Transportation Safety Board, whose job is to investigate all airplane crashes. And what’s striking about the NTSB is of course, their public position on this, that all accidents reviewed by the NTSB are a matter of open public record and the idea here is that now the public, which has an interest in why airplanes crash, get to review all the same data that the NTSB can find and reveal. In medicine, in my field, I’m also an anesthesiologist, and my particular specialty is, you know, I say this favorably, is obsessed with safety and so whenever we have an accident or an occurrence, we investigate it, and we talk about it publicly. You know, we reveal where we make mistakes. It’s important for us to keep the public trust and faith in us, that we are honestly and openly examining our mistakes. And I can tell you that if execution, the way that execution and mistakes are managed, with the way that we we manage either airline crashes, or the practice of medicine, I think the public would be outraged, and they would lose faith in these sorts of things. So when I see states shrouded in secrecy over these occurrences, of course, anyone logically would ask, what exactly is it that you have to hide? And why are you hiding it?
Robert Dunham 32:15
Dr. Zivot, I’d like to turn now to some of the ethical issues that you and others have seen in the medicalizing of executions. Lethal injection, and you’ve made clear this is not a medical procedure, but it mimics a medical procedure, and it requires someone with medical training to competently insert an IV and to administer the drugs. But it’s unethical for doctors to participate in killing prisoners and associations of various medical professions: doctors, nurses, pharmacists, and the pharmaceutical companies themselves have expressed opposition to using medicines and medical professionals in executions. As a doctor who writes about end of life care and physician assistance in dying, what are the ethical considerations in whether doctors or other medical professionals should participate in lethal injection executions?
Joel Zivot 33:08
Well, I think, again, to reiterate your point, let’s be clear that lethal injection is in no way a medical act. The problem with lethal injection is it looks like one. So it looks like one because it involves the tools of the medical trade. I like to say it involves chemicals, intravenouses, it involves some monitoring, it involves the use of terms that are commonly used in the hospital. It involves putting an inmate on a gurney, for example. All of these things look like a medical act and you might first by ask yourself, why is it done this way? You know, I would think that the reason why it’s done this way is because the state is trying to send a message to the public, that somehow medicine and science and the safety afforded with that is present here. It’s meant to be reassuring, that we’re creating something that is fundamentally safe, and has oversight by professionals. You’re right that many professional health organizations, practice organizations, have taken strong and categorical positions against its members from participating, but some choose not to. They, the argument that I’ve heard advance, the classic argument is that an inmate is now sentenced to death and that the death, the anticipated death can be configured now as a terminal illness and because the inmate is now dying of an illness that is execution, a physician can step in and create a relationship where now the physician is concerned with the reduction of pain as someone is dying. Now, let me just tell you categorically that I would dismantle that argument into many small pieces. The first thing is that an inmate is not a patient by dint of a doctor standing there. The inmate did not choose me, we have no therapeutic relationship and as a doctor, I am not responsible for some sort of universal reduction of suffering. So I think it’s a false claim that a physician suddenly has a role here because there are some trappings of the medical trade that are involved. I think that’s wrong. A counter argument might be if the physician is there to stop the pain of dying, I can tell you that if I’m caring for individuals who are dying, I am not seeking their death. I’m trying to reduce their suffering. So the kind of things that are reducing suffering here are not at all the same. This is more akin to active involuntary euthanasia, which the Supreme Court, of course, has taken a very strong position that it is against. So I see, from an ethical perspective, I see this argument that somehow if someone is suffering, that a doctors job is to reduce that suffering. That’s a false claim because there are other kinds of methods of reductions of suffering, for example, not allowing the execution to take place at all, that would be something else that perhaps an ethical physician might suggest. So I think that what’s troubling about execution is that not only is the public fooled, misled, as to what exactly is happening here, but so frankly, are some doctors and nurses, they too, are misled in thinking that somehow this is a medical act, and therefore they have a role. Physicians, or any other healthcare workers have no role here whatsoever in making execution, different or even quote better than it could possibly be. That’s not the job of the doctor. That’s the job of the state.
Robert Dunham 37:22
Doctor, what do you think should be the role of the type of research that you have done, your review of the autopsies, in policymaking related to the death penalty?
Joel Zivot 37:35
I think that, again, that my area of expertise here is narrow. So what I am not an expert in killing, I have said, I am an expert in unkilling. And so if you want an expert in killing, you’re going to have to look somewhere else. I can tell you that my narrow reading and my understanding of what is lawful, with respect to punishment requires that this punishment, which is execution cannot be cruel. I feel confident that my work has shown that execution by lethal injection is clearly and unambiguously cruel. If the state wishes to execute individuals, that’s the state’s prerogative. But I would ask them to stay away from everything that is mine, everything that is medicine, that capital punishment does not require lethal injection and that’s the state to determine what method of killing it will use, but don’t ask a doctor. I think that to try to design some kind of ethical prospective study will always be impossible here. That sort of human research requires a relationship with a subject that will never take place in execution. Inmates facing execution cannot be seen to be consenting to be randomized to one form of execution or another. It’s absurd to even try to imagine how such a study could take place. So, I think this is the best we have, that the autopsy has been critical here in determining the thing that we always thought that there were some cruelty here that was difficult to be measured, but now it’s measured and it’s shown. So it’s time for lethal injection to go away. If, again, if the state wishes to execute by another method, I leave that to the state and to the people. And the court again, will have to determine whether or not the method that is chosen, you know will be cruel or not. This method is clearly cruel, and it’s time for to stop.
Robert Dunham 39:43
Dr. Zivot, thank you for joining us on Discussions with DPIC.
Joel Zivot 39:47
Thank you for having me.
Robert Dunham 39:48
To see Dr. Joel Zivot’s TEDx talk: Medical Assistance and Dying, Not As Easy As It Looks. Go to www.ted.com slash watch slash TEDx talks and search for Joel Zivot. To learn more about the death penalty, visit the DPIC website at deathpenaltyinfo.org, and to make sure you never miss an episode of the podcast, subscribe to Discussions with DPIC on your podcast app of choice.
