Lethal Injection

American Nurses Association Adopts Position Statement Against Capital Punishment

In an expansion of their stance opposing nurse participation in executions, the American Nurses Association (ANA) announced on February 21, 2017 that the organization now for the first time opposes capital punishment itself. "Capital punishment is a human rights violation, and ANA is proud to stand in strong opposition to the death penalty," ANA President Pamela F. Cipriano said. "All human beings, regardless of their crimes, should be treated with dignity. For those states where capital punishment is currently legal, the American Nurses Association will continue to provide ethical guidance, education, and resources for nurses and other health care providers dealing with these ethical dilemmas." The ANA had long opposed nurses participating in the death penalty in any role, adopting that position in 1983. “The drafters of the subcommittee were initially supporters of the death penalty until they started doing research," Liz Stokes, the senior policy advisor for the ANA Center for Ethics and Human Rights, said. But as they studied the issue, she said, they were moved by the body of evidence showing problems in the way it was administered. Ultimately, the ANA’s board of directors unanimously adopted the new position. The ANA statement offers nine reasons for the association's opposition to the death penalty, including racially and geographically biased application, the risk of executing innocent people, botched executions, and high costs. The new position aligns with the International Council of Nurses, which "considers the death penalty to be cruel, inhuman and unacceptable," and reflects a growing consensus among medical organizations that participation in executions by medical professionals is unethical. The American Medical Association, American Board of Anesthesiology, and American Pharmacists Association, among others, have discouraged or forbidden their members from participating in executions and American pharmaceutical manufacturers have adopted policies seeking to prevent misuse of their medicines as execution drugs.

Former Federal Appeals Judge Urges Caution as Ohio Reschedules Executions

In a guest column for the Cleveland Plain Dealer, retired federal appeals court judge Nathaniel R. Jones (pictured) urged Ohio to "reconsider its race to death" in scheduling executions while the constitutionality of the state's lethal injection process remains in question. Jones, who served on the United States Court of Appeals for the Sixth Circuit from 1979 to 2002, criticized the state's proposed use of the drug midazolam in executions, describing Ohio's 2014 execution of Dennis McGuire using the drug, in which witnesses said McGuire "gasped loudly for air and made snorting and choking sounds for as long as 26 minutes" before dying. In its aftermath, Ohio temporarily halted executions and announced that it would not use midazolam—which has now been implicated in botched executions in four states—in the future. Jones wrote that, since the McGuire execution, "even more information has emerged about how unsuitable midazolam is for lethal injection." But despite its prior announcement and the additional evidence concerning midazolam, Ohio in 2016 proposed a new three-drug protocol that included midazolam as the first drug, and the state is defending that protocol in court. After a five-day hearing in which the court heard extensive expert testimony, U.S. Magistrate Judge Michael Merz held that Ohio had failed to prove that midazolam does not present a substantial risk of harm and declared the state's proposed execution protocol unconstitutional. Despite the on-going litigation, Ohio set new execution dates both before and after the hearing. "Ohio officials must not risk another unconstitutional execution," Jones wrote. "That can be done only by placing executions on hold while courts take the time necessary to consider whether Ohio's problematic protocol passes constitutional muster." He called on Ohio officials "to agree not to resume executions until the courts determine a lawful method." On February 10, Ohio Governor John Kasich announced that he was rescheduling eight executions as the state appealed the magistrate judge's ruling. The earliest execution, which had previously been scheduled for February 15, was moved to May 10. 

Texas Sought Execution Drugs from Company Raided by India for Illegal Drug Sales

A BuzzFeed News investigation reports that Texas sought to import execution drugs from a supplier in India that the Indian Narcotics Control Bureau shut down for allegedly selling psychotropic drugs and opioids illegally to customers in the United States and Europe. A Drug Enforcement Agency report from January 2015, obtained by BuzzFeed, indicates that Texas was in contact with an Indian drug supplier, Provizer Pharma, to obtain lethal injection drugs, just weeks before Indian narcotics control agents raided Provizer Pharma for the illegal sale of generic Xanax, generic Ritalin, opiods, and other drugs. Hari Om Gandhi, a regional director with the Indian Narcotics Control Bureau, said the drugs—which Indian court documents allege were being illegally sold online—are used medically "for relieving stress ... [, but] are also used as party drugs, as it stimulates senses.” Five Provizer Pharma partners were arrested and detained for nine months for violating India’s Narcotic Drugs and Psychotropic Substances Act and the company's facility was shut down after what the Narcotics Control Bureau described as "a significant sezure" of illegal drugs. The DEA investigative report states that Texas "will be importing" 500 to 1,000 grams of sodium thiopental, which it "will be importing from the following supplier: Provizer Pharma." The Texas Department of Criminal Justice has issued a statement saying that the state has never “engaged in any transaction” with Provizer Pharma. Sodium thiopental was widely used in executions before its U.S. manufacturer halted production because it objected to the use of its medicine in executions. Shortly after the deal with Provizer Pharma fell through, Texas purchased sodium thiopental from another Indian company, Harris Pharma, but the shipment was halted by the Food and Drug Administration. Texas recently filed suit against the FDA to have the drug shipment released, but the FDA is under a federal court order to block importation of sodium thiopental. 

Federal Magistrate Judge Rules Ohio Lethal Injection Protocol Unconstitutional

After receiving evidence during a five-day hearing, U.S. Magistrate Judge Michael R. Merz ruled on January 26 that Ohio's lethal injection process will create a substantial and objectively intolerable risk of serious harm in violation of the Eighth Amendment. Based on that ruling, the court issued a preliminary injunction staying the executions of Ronald Phillips, Raymond Tibbetts, and Gary Otte. Ohio has not conducted an execution since January 2014, when it used a combination of the drugs midazolam and hydromorphone in the 26-minute long botched execution of Dennis McGuire. In January 2015, Ohio changed its protocol and removed the controversial drug midazolam, only to announce in October 2016 that it had changed course and would use midazolam in upcoming executions as part of a three-drug protocol. Ohio's proposed protocol consisted of: midazolam, a sedative the state claimed would anesthetize the prisoner; then a drug that causes complete muscle paralysis and consequently suffocation; followed by potassium chloride to ultimately stop the heart. The second and third drugs will cause excruitating pain and suffering if given to a person who is not properly anesthetized. Numerous medical experts have asserted that midazolam does not anesthetize a person sufficiently to prevent experiencing intense pain from the other drugs, but a number of states have nevertheless continued to use the drug in executions. In addition to Ohio, Arizona, Oklahoma, and Alabama all have conducted visibly problematic executions with midazolam. Florida, which has carried out more executions with midazolam than any other state, recently changed its protocol to abandon use of the drug. Judge Merz credited the testimony of scientific experts, finding that "midazolam does not have the same pharmacologic effect on persons being executed as the barbiturates thiopental sodium and pentobarbital." The magistrate judge rejected Ohio's argument that midazolam would cause the prisoner to forget any pain he might experience during the execution, writing, "That does not mean the pain was not inflicted and the Supreme Court has yet to tell us that inflicted pain that is not remembered does not count as severe pain for Eighth Amendment purposes." Under the doctrine of "judicial estoppel," the court also blocked the state from using the proposed second and third drugs because it had relied on abandoning their use as grounds for winning a prior lawsuit in 2009. The court said applying the estoppel rule was necessary to "prevent[] a party from abusing the judicial process through cynical gamesmanship." 

Anesthesiologist Says Lethal Injection Creates Moral Dilemma for Physicians

Lethal injection as practiced in U.S. executions "is an impersonation of medicine populated by real doctors who don't acknowledge the deception," Dr. Joel Zivot (pictured), an anesthesiologist and associate professor of anesthesiology at Emory University School of Medicine, writes in an op-ed for CNN. Setting aside the question of the rightness or wrongness of capital punishment itself, he says, "it's time to reject lethal injection" as the method of execution. Dr. Zivot's op-ed describes how the medicalization of executions has created an ethical problem for doctors. He cites as an example the recent Virginia execution of Ricky Gray, which used midazolam and potassium chloride from a compounding pharmacy, along with a paralytic drug. He calls lethal injection, "a trick of chemistry" that "does not cause a cruelty-free death," explaining, "Virginia used a paralytic drug that may obscure the failure of midazolam to create the sort of deep unconsciousness contemplated by lethal injection proponents." He says that, because lethal injection "approximates a medical act," it "fall[s] within the purview of physicians who now find themselves wittingly or unwittingly cast in the role of execution adviser." These physicians must choose between their profession's ethical prohibition against killing—both the American Medical Association and the American Board of Anesthesiology have issued statements condemning physician involvement in executions—and their ethical imperative to reduce suffering, especially in the face of botched executions. "An inmate facing death is not a patient by virtue of being connected to an intravenous device and having a doctor in a lab coat standing by. Physicians can only work with patient consent," Zivot says. He asks, "What is the role of the doctor in the execution chamber? When does the alleviating of suffering become physician-assisted homicide?" Because of these ethical dilemmas, and the failure of lethal injection to offer a cruelty-free execution, Zivot concludes, "If capital punishment continues, it needs another method."

California Agency Rejects Proposed Execution Protocol

In a new setback to efforts to restart executions in California, the state's Office of Administrative Law (OAL) has rejected the new lethal injection protocol proposed by the California Department of Corrections and Rehabilitation. On December 28, 2016, the OAL, which is responsible for reviewing regulatory changes proposed in California, issued a 25-page decision of disapproval, citing inconsistencies, inadequate justification for certain parts of the proposal, and a failure to adequately respond to public comments. The agency gave the Department of Corrections four months to address problems in the protocol. The proposed protocol would have changed California's previous three-drug procedure to a one-drug procedure, calling for 7.5 grams of one of four barbiturates. The OAL questioned whether the 7.5 gram dose met California's requirement that a regulation be "necessary," noting that corrections officials had said 5 grams of the barbiturate would be lethal and had provided no rationale as to why they chose a larger dose. It also requested clarification of numerous ambiguities in the new regulations, including the steps taken by correctional officials in the days leading up to the execution, what steps would be taken during the course of an execution if the prisoner did not immediately die, and what would be involved in monthly inspections of the execution chamber. Among the inadequate responses to public comments, the OAL noted that "[t]he Department's response does not address the issue of 'using methods that are untested or poorly understood' or 'human experimentation' as it pertains to the use ... for lethal injection purposes" of two of the drugs in the protocol. Executions in California have been on hold since 2006 because of legal challenges to the state's lethal injection procedure. In November, voters narrowly passed Proposition 66, which proposes to speed up executions. Implementation of that proposition was blocked by the California Supreme Court, pending the outcome of a lawsuit.

Texas Sues Food and Drug Administration Over Seizure of Execution Drugs

The Texas Department of Criminal Justice filed suit on January 3, 2017 against the federal Food and Drug Administration (FDA) over the FDA's continued detention of drugs Texas had attempted to import for executions. In October 2015, Texas and Arizona attempted to import sodium thiopental, an anesthetic commonly used in executions prior to 2010, from Harris Pharma, a supplier in India. The FDA halted both shipments, saying that their import violated federal law. The FDA does not comment on litigation, but has previously said that sodium thiopental has no legal uses in the United States. The agency has indicated in the past that an injunction issued by a federal district court in Washington in 2013, and which later was upheld by the United States Court of Appeals for the District of Columbia Circuit, requires it to halt importation of the drug. No U.S. manufacturer currently produces sodium thiopental, and so the drug is unavailable from domestic sources. Texas argues that the drug should be allowed to be imported under a "law enforcement exemption" to usual importation rules. In a statement about the lawsuit, Texas Attorney General Ken Paxton attacked the agency, saying "[t]here are only two reasons why the FDA would take 17 months to make a final decision on Texas’ importation of thiopental sodium: gross incompetence or willful obstruction." Texas has used an alternative drug, pentobarbital, in executions since 2012. A spokesman for the Texas Department of Criminal Justice said, "We cannot speculate on the future availability [of] drugs, so the agency continues to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process."

Ronald Smith Heaves and Coughs During Alabama Execution After Tie Vote in Supreme Court Denies Him A Stay

After a divided U.S. Supreme Court twice temporarily halted the execution of Ronald Bert Smith, Jr. (pictured), Alabama put Smith to death on December 8 in a 34-minute execution in which Smith heaved, coughed, clenched his left fist, and opened one eye during one 13-minute period. Smith's jury had recommended by a vote of 7-5 that he be sentenced to life without parole, but, in a practice permitted by no other state, his trial judge overrode that recommendation and sentenced Smith to death. At the time his execution was scheduled to begin, Smith had a stay motion and a petition for certiorari pending in the U.S. Supreme Court arguing that judicial override violated his Sixth Amendment right to a jury trial and was unconstitutionally arbitrary under the Eighth Amendment. After Alabama announced its intention to proceed with the execution despite the pending petition, Justice Thomas granted a temporary stay, a procedure to allow time for the full Court to act. Half the Court—enough to review a case—voted to grant Smith a stay, but five votes are required to halt an execution. Smith's lawyers then filed a motion for reconsideration, criticizing as arbitrary the rule that allows four votes to grant review of a case, but requires five to stay an execution. His motion argued that when four justices vote to hear a case, "all certiorari petitioners, public and private parties in civil and criminal cases of every kind" are entitled to have their cases reviewed except condemned prisoners facing an imminent execution. He asked the Court to reconsider his stay motion "[b]ecause the Court’s inconsistent practices respecting 5-4 stay denials in capital cases clash with the appearance and reality both of equal justice under law and of sound judicial decision-making." Justice Thomas granted another temporary stay so the full Court could consider that motion; after about an hour, the Court denied the request and also rejected a last-minute challenge to the state's lethal injection procedure. Alabama used a three-drug procedure in its execution, beginning with midazolam, a sedative that has contributed to botched executions in several other states and that was the subject of a challenge before the Supreme Court in 2015. Though midazolam is intended to render the inmate unconscious and therefore protect against the pain and suffering that would be experienced from the second and third drugs, witnesses reported that Smith showed signs of consciousness after it was administered.

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