Lethal Injection On Trial

When Socrates was executed, Plato described the action of hemlock as a slowly rising chill, beginning in the feet and ending life when it eventually reached the heart. As it did so, Socrates' last request was for an offering to thank Asclepius, patron of healers, for such an effective poison. It is an ignoble legacy that 2400 years later, medical science continues to affect the efficiency, rather than the ethos, of execution. But there is now an opportunity to redress this shortcoming, by considering evidence that demonstrates the barbarity of lethal injection.

Michael Morales was scheduled to have been executed on Feb 21 in California for torturing, raping, and murdering a teenage girl. His attorney, Kenneth Starr, claimed that execution by lethal injection would be a cruel and unusual punishment, which is prohibited by the Eighth Amendment to the US constitution. Ratified in 1789, this amendment was designed to end punishments such as burning and disembowelling, in which death was secondary to the infliction of pain and retribution.

Afterwards, hanging became the recommended procedure until bungled public executions caused authorities to look elsewhere. Thomas Edison proposed that electrocution would be instantaneous. It wasn't. Gas followed, and then lethal injection. By the 1970s a minority view of the US Supreme Court held that execution would be cruel and unusual under any circumstances.

Similar motions before the same Californian court in 2004 and 2005 had failed. But now Starr could cite Koniaris and colleagues' Lancet paper, which found that despite a theoretically lethal dose of barbiturate, 21 of 49 executed US inmates had postmortem thiopental concentrations consistent with consciousness.

In addition, records from San Quentin prison revealed that of the 13 inmates executed by lethal injection in California, six continued to breathe until after pancuronium had been injected. Among those with a lingering execution was Tookie Williams, a former gang-leader, turned children's author in an attempt to warn youngsters away from violence.

Judge Jeremy Fogel ordered that the state could execute Morales, but must do so without inflicting undue pain. Therefore, the state must either rely solely on thiopental, or else have a qualified individual confirm unconsciousness before the injection of pancuronium and potassium chloride.

Two anaesthetists who had volunteered to observe the execution refused to accept the new terms in which their role of monitoring vital signs would constitute active participation; furthermore it was unclear how they should act if the plane of anaesthesia was inadequate.

This decision leaves the future of current US lethal injection protocols in doubt.

Of the 1012 executions carried out in the US since capital punishment was re-established in 1977, 844 have been by lethal injection. Nebraska is the only state, among 38 with death penalties, that relies on another method. New Jersey has suspended lethal injections after concerns about the procedure, and challenges to this method are being heard from Missouri and Florida. Meanwhile, 646 condemned inmates wait with Michael Morales on death row in California.

Despite questionnaires showing willingness among some US physicians to participate in state executions, such behaviour contradicts the principles of many professional organisations in the USA, including the American Medical Association, American College of Physicians, American Society of Anesthesiologists, American Nurses Association, and Association of Emergency Medical Technicians. In California, the 30,000-strong state medical association is sponsoring legislation to outlaw medical participation in executions. But why are health practitioners involved at all? Is it to ensure outcomes, or to salve the conscience of the public by providing a façade of compassion and clinical efficiency?

This is a pivotal point in history. A moment when individuals, like Judge Fogel, and the anaesthetists who refused to participate, have given voice to their conscience. They have articulated the concerns of an increasing number of Americans, whose support for capital punishment has dropped from 80% to 64% in the past decade. It is a voice to be heeded. As Judge Fogel noted, the Eighth Amendment has been interpreted as prohibiting punishments that are “incompatible with the evolving standards of decency that mark the progress of a maturing society”. In 2004, China, Iran, Vietnam, and the USA accounted for 97% of the world's executions. From which of these countries will a mature society take the lead, and abolish the atrocity of state execution?

The Lancet, Volume 367, Number 9512, 04 March 2006