Published: February 11, 2007
On a warm spring day last June in Kansas City, a doctor identified only as John Doe No. 1 sat behind a screen to testify in the case of Michael Anthony Taylor v. Larry Crawford on his practice of executing prisoners by lethal injection for the State of Missouri.
To protect the doctor’s identity, only five people were in the room — the judge, one lawyer for each side, the court reporter and John Doe No. 1. The Taylor case, which is still going on, pits a murderer against the director of the Missouri Department of Corrections. That afternoon’s testimony was widely considered to be the end of the legal rope for Michael Taylor, who was awaiting execution for one of Kansas City’s most notorious crimes: he had kidnapped Ann Harrison, a 15-year-old honor student and flutist, from a bus stop at 7 a.m. on March 22, 1989, raped her and stabbed her through the heart, lungs and throat.
Nobody was contesting Taylor’s guilt or even the death penalty. On trial was the legality of the way lethal injection is being carried out, on the grounds that it violates the Eighth Amendment ban on cruel and unusual punishment. According to Richard Dieter, executive director of the Death Penalty Information Center, legal challenges to lethal-injection procedures are taking place in virtually every state with an active death penalty. As a result of those cases, about 12 of the 38 states that have the death penalty have issued temporary bans on executions, and in one, New Jersey, a legislative commission recently recommended abolishing its death penalty altogether. Until these cases, contesting the constitutionality of lethal injection seemed like little more than a delaying tactic — how could a method of execution be more benign than lying on a gurney and drifting to sleep? — but little was known about how lethal-injection procedures actually worked.
From behind the screen, John Doe No. 1 — later identified in The St. Louis Post-Dispatch as Alan Doerhoff, a doctor who the newspaper reported had more than 20 malpractice suits filed against him and hospital privileges revoked at two institutions — testified that he began performing lethal injections in Missouri in the mid-90s after a botched execution. During that execution, the execution team, which did not include a doctor, tried to inject the lethal drugs into an inmate’s thumb. (If an inmate has a history of IV drug use, it can be very difficult to find a suitable vein.) Doerhoff, like virtually all those taking part in executions, did so anonymously, a vestige from the days of the hooded executioner. That day, shrouded on the stand, Doerhoff explained that he had devised the state’s execution protocol without consulting anyone. About a third of the way through two hours of questioning, in response to Taylor’s attorney, Ginger Anders, asking why Doerhoff gave inconsistent answers to questions concerning the amounts of drugs used, he said: “I can save you a whole lot of time and offer my apologies to the court, but last night I was trying to pay my cable bill. . . . I realized I had copied my account number by dropping one digit and transposing two. In surgery that’s not important. But I am dyslexic . . . . so it’s not unusual for me to make mistakes.”
Over the course of Doerhoff’s testimony, Anders uncovered many significant details similar to those uncovered in other states. For instance, Doerhoff testified that executions in Missouri have taken place in the dark, an execution team working by flashlight, and that the execution team routinely consists of “nonmedical people.” For most, the day of the execution is “the first time probably in their life they have picked up a syringe . . . so it’s a little stressful for them to be doing this.” Doerhoff stated that he determined if an inmate being executed had been adequately anesthetized by observing the condemned’s face through a window, which others noted was obscured by partly opened blinds. He also told the court that he reduced by half the five grams of anesthetic he had been using after the pharmaceutical company supplying it started packaging it in smaller bottles, which made it tricky to get the five grams in a single syringe. When Anders asked if he used calculations to determine the quantities of drugs to administer, he replied, “Heavens, no.”
Later Anders asked, “Is any part of the execution procedure written down?”
“I’ve never seen it.”
“There’s no guide that you follow as you’re doing it?”
Included in the extensive hearing transcripts of various lethal-injection challenges around the country are stories of inmates, like one in Ohio, raising his head in the middle of his own execution to say, “It’s not working.” In Alabama, officials at one point said they would execute an inmate who had compromised veins by placing an IV in the saphenous vein in his arm; that vein is actually in the leg. In an important case in California — the state with the most prisoners on death row — investigations have revealed inadequate execution conditions comparable to those in Missouri, in addition to alarming problems with an incompetent execution team. As these various court proceedings were unfolding, corrections officials in Starke, Fla., executed Angel Diaz by lethal injection on Dec. 13, 2006. But because the execution team punctured the veins in Diaz’s arms when putting in the intravenous catheters, forcing the drugs into the soft tissue instead, Diaz grimaced for as long as 26 minutes, suffering from 11-inch and 12-inch chemical burns on his left and right arms respectively, and took 34 minutes to die. Two days later, after the details of Diaz’s execution were reported in the media and it became clear that he was almost certainly not anesthetized for the procedure, Gov. Jeb Bush put a ban on all executions in Florida. That same afternoon in California, Judge Jeremy Fogel of the U.S. District Court issued a long-awaited ruling declaring the state’s lethal-injection protocol unconstitutional.
“We’re in an amazing moment of national reconsideration that would have been unimaginable a decade ago,” says Austin Sarat, a political-science and law professor at Amherst College and the author of “When the State Kills: Capital Punishment and the American Condition.” In 1994, in Callins v. Collins, Justice Antonin Scalia of the Supreme Court remarked, “How enviable a quiet death by lethal injection.” As Sarat told me recently, “Maybe it’s not so enviable.”
Lethal injection is the most recent attempt to find a way to transport condemned inmates from life to death in a manner that does not offend our civilized sensibilities. Over the past 100 years, states have chosen from, and discarded, as many as five execution techniques. As a dominant method, the noose has been replaced by the electric chair and the electric chair by lethal injection. Some states also cycled through the firing squad and lethal gas (all five methods still remain options in one state or another). Each change in technique was based on the notion that the new method would be better — more dignified, less gruesome — and in some ways each has been. Nooses, if the drop is too short, can leave bodies twitching for up to 45 minutes, and if the drop is too long, as it was for Saddam Hussein’s half brother, the condemned can fall with so much force that his head is ripped off. Firing squads are considered too violent. Lethal gas takes too long; the 1992 lethal-gas execution of Donald Harding in Arizona was so long — 11 minutes — and so grotesque that the attorney general threw up and the warden threatened to quit if he were required to execute someone by gas again. The electric chair often results in horrible odors and burns; in Florida, in the 1990s, at least two inmates heads’ caught fire, and the chair routinely left the condemned’s body so thoroughly cooked that officials had to let the corpse cool before it could be removed.
The inability to tolerate a single execution method for very long seems to stem, in part, from the conflicted relationship Americans have with capital punishment. The majority of people continue to support it. But as the untoward executions in Iraq have underscored, we don’t want government-sanctioned killings to look like lynchings, nor do we want those killings to be too brutal or bloody. Further complicating matters, the American public tends to resist engaging with the physical problem of killing people. Unlike China, which methodically tested lethal-injection protocols on humans and now has a suite of hyperefficient lethal-injection vans that drive around the provinces carrying trained teams that execute the condemned, the federal government has never convened a panel to study the practicalities of killing death-row inmates. And unlike officials in Britain, which in 1953 published “The Royal Commission on Capital Punishment,” advising against using lethal injection, neither wardens nor legislators in the United States have ever conducted a professional survey on execution procedures or studied how those practices might be improved. The American Veterinary Medical Association issues and reviews recommendations for euthanizing animals. No one in the United States does anything similar for condemned inmates. As a result, the issue, by default, finds its way to the courts. “There are a number of issues that are no-win issues for the legislative branch — abortion, the definition of marriage, anything having to do with the death penalty,” Fogel, the California federal judge, told me. “Cases like this do tend to end up in the courts because the legislature is having difficulty reaching consensus that reflects all the interests involved.”
The idea of lethal injection has been around since 1888, when New York State first considered the method and doctors strenuously opposed it, fearing that the public would associate medicine with death. Oklahoma revived the idea of lethal injection in 1977 when — with the state’s electric chair broken and requiring expensive repair and with Gary Gilmore’s recent firing-squad execution in Utah having created an unsavory spectacle of state violence — the state’s chief medical examiner, Jay Chapman, after being approached by a state representative, devised an execution method that mimicked the induction of general anesthesia. When I met Chapman at his house in Santa Rosa, Calif., he described himself to me as “an expert in matters after death but not in getting people that way.” Nonetheless, in 1977 the Oklahoma Legislature ratified a bill that incorporated the general description of a method he proposed. Over the subsequent decades, 36 other death-penalty states came up with some version of Chapman’s method.
Deborah Denno, a professor at Fordham University Law School, says that what she thinks of as America’s deep ambivalence about capital punishment — our inability to do away with it or to think very hard about it — has meant that Chapman’s story, that of one man making a small and modestly considered proposal that then persists over time, is not unique. “The history of the death penalty in America is full of people getting involved and not realizing that what they contribute is going to be stretched to the limit,” Denno told me. In 2001, Denno conducted an extensive survey of lethal-injection protocols. She found that many states made errors when creating their own protocols by using drugs that Chapman originally suggested. As Denno wrote in 2002 in The Ohio State Law Journal, “One of the most striking aspects of studying lethal-injection protocols concerns the sheer difficulty involved in acquiring” those protocols. She found that only one-quarter of the states that used lethal injection specified the quantities of the drugs to be injected.
Chapman’s method works like this: The execution team inserts an IV line, and then the condemned is given sodium pentothal, the first of three drugs. Sodium pentothal, classified as an “ultrashort-acting barbiturate,” is meant to render the inmate deeply unconscious within 90 seconds. A second drug, pancuronium bromide, a muscle relaxant or paralytic (it paralyzes all skeletal muscles, including the diaphragm), keeps the inmate from disturbing the witnesses by gasping, moaning or flopping around on the gurney. The third drug, concentrated potassium chloride, stops the heart.
The technique utilizes medical equipment, knowledge and technique as well as medicine’s veneer of respectability. If performed correctly, without human error, it should kill inmates quickly and painlessly. Yet each of the four main steps involved — securing IV access and then injecting each of the three drugs — has raised medical concerns. Starting an IV can be very difficult on a person who is obese, nervous or cold or who has a history of IV drug use, any one of which is not an unlikely complication in an inmate about to killed. Sodium pentothal is not packaged in solution, meaning the executioners must mix the powder with water just before killing, a somewhat delicate thing to do. The pancuronium bromide, or paralytic, prevents observers from determining if the inmate is properly anesthetized, since he can’t speak or move. Potassium chloride, which stops the heart, creates a burning sensation in the veins and might cause excruciating pain if the inmate is not properly anesthetized. (These concerns, and others, appear in the 1953 British report.)
Under careful medical supervision, these problems, most likely, would rarely have arisen. But in 1980, between the time Chapman devised his lethal-injection method and the time Texas first used lethal injection to execute an inmate, the American Medical Association in its ethics code told its members not to participate in executions (though that mandate has not been strictly enforced). Later the code would prohibit physicians from selecting fatal-injection sites or starting IV lines; prescribing or injecting lethal drugs; inspecting, testing or maintaining lethal-injection equipment; consulting with or supervising an execution team; monitoring condemned prisoners’ vital signs; or declaring the death of the inmate. (Confirming or certifying after an inmate has been declared dead is permissible.) As a result, the first execution by lethal injection — that of Charles Brooks Jr. in Texas in 1982 — did not go well. The execution team turned to a doctor, who had come only to certify the death, in order to find a suitable vein for the IV. Instead of preparing and injecting each of the three drugs separately, the warden mixed them all in the same syringe, producing a thick, white sludge. When the attending doctor approached Brooks to certify death, he found the inmate still breathing. The task of administering drugs, so routine in hospitals, failed to translate smoothly to the death chamber. As Chapman, its progenitor, told me: “It never occurred to me when we set this up that we’d have complete idiots administering the drugs.”
A week after Doerhoff’s testimony in the Taylor case in Missouri, in the presence of the mothers of both the condemned man and the murdered girl, Dr. Mark Heath and Dr. Mark Dershwitz took the stand. The arguments over lethal injection’s constitutionality are largely medical, and both doctors have had busy years testifying or providing affidavits in many states with a lethal-injection proceeding. Dershwitz, a professor of anesthesiology at the University of Massachusetts Medical School and an expert witness for the state, told the court that in his professional opinion, the five grams of sodium pentothal Doerhoff claimed to typically administer to condemned inmates would render a person unconscious 99.99999999 percent of the time, assuming the drug went through a working IV line. According to Dershwitz, most people who received such a dose would remain unconscious for 13 hours, if they were able to continue breathing. A third of that dose, 1.67 grams of sodium pentothal, should produce a deep state of unconsciousness in almost anyone. “It all boils down to the skill level at getting a functioning IV in, and you don’t need a lot of fancy initials after your name to do that,” Dershwitz told me. A rough gauge of unconsciousness is not difficult either. “Have you ever taken a CPR class?” he asked. “What’s the first thing they teach you: you shake the doll and say, ‘Annie, Annie, are you O.K.?’ If Annie doesn’t respond, she’s not conscious.”
On the other side, Anders used her medical witness, Heath, to further discredit Doerhoff. Heath, a Columbia University anesthesiologist, grew interested in lethal injection at the time of Timothy McVeigh’s 2001 execution. Just before McVeigh’s death, Heath began reading newspaper accounts of the drugs to be used. He found the combination baffling — Why use an ultrashort-acting barbiturate? Wasn’t it risky to include a paralytic? — and assumed that reporters were making errors. Then, after the execution itself, Heath read accounts of tears appearing in McVeigh’s eye, a sign that McVeigh might not have been properly anesthetized, and that prompted him to call the warden in Terre Haute, Ind., to learn more about the procedure. Somewhat by accident — by just being a citizen who read something in the papers regarding his field of expertise that didn’t sound right — Heath is now, after years of study, considered one of the nation’s leading experts on lethal injection. As Deborah Denno, the Fordham law professor, says: “His impact has been enormous. Heath’s influence has no parallel.”
After highlighting the problems with a dyslexic doctor single-handedly controlling the state’s lethal-injection protocol — and also allowing that a dyslexic doctor “could well be very gifted with his hands” and thus a good surgeon — Heath, who declined to be interviewed for this article, then pointed out, in Doerhoff’s testimony, “numerous important factual statements that are completely wrong.” Heath told the judge that Doerhoff didn’t “know what he was talking about when it comes to the use of” sodium pentothal. For instance, Doerhoff said in court that if an inmate were not properly anesthetized, you would have to repeat the entire dose, instead of just incrementally adding on to it; that sodium pentothal does not lower blood pressure; that it must be injected very quickly; and that it metabolizes while traveling up an inmate’s arm — all incorrect, according to Heath. Heath also pointed out, and the state concurred, that Doerhoff’s sloppiness in record keeping made it impossible for anyone to deduce how much of each of the three lethal-injection drugs actually entered an inmate’s veins.
“So that’s standard practice to record doses?” Anders asked Heath.
“That’s essential standard practice,” Heath replied.
“If a resident consistently fails to record doses, what would be the consequences?”
“They wouldn’t be allowed to continue through the residency.”
Heath testified, and the state again concurred, that given the sloppy records, no one could possibly know if any given prisoner was adequately anesthetized, and that if a prisoner was not properly anesthetized, his execution would produce feelings akin to being suffocated (from the second drug paralyzing his diaphragm) and burned from the inside (from the potassium in his veins). Furthermore, Heath described the problems with the execution chamber’s design, most notably a separate room from which Doerhoff and his execution team administered the drugs into the IV line. From where Doerhoff stands during an execution, his identity shielded from witnesses and his psyche distanced from the act of killing, the IV line disappears into a hole in a desk, through a wall and then under the sheet on the inmate’s gurney, preventing anyone on the execution team from seeing if the drugs are flowing properly and if the catheter remains inserted in the vein properly.
Anders asked Heath, “When, if ever, do anesthesiologists induce general anesthesia from a remote location?”
Heath explained that except in extreme exigent circumstances, “one would never induce general anesthesia from a remote location. That would be completely, deeply beneath any reasonable standard of care.”
Lethal-injection challenges have elicited similar findings in other states. In California, the case of Michael Angelo Morales v. James E. Tilton also pits a murderer and rapist of a high-school girl against a warden. Hearings started in January 2006, and since that time Judge Fogel has heard from nine anonymous members of the state Department of Corrections execution team (which currently includes no doctors), he has listened to testimony from a veterinary expert in euthanizing gorillas and he has visited the execution chamber in San Quentin. Through this process, he and the public have learned that two members of the execution team previously had been arrested for drunken driving, that one had taken mental-health leave for depression and post-traumatic stress disorder from working in the prison system and that another had taken two months’ medical leave to recover from a fight with an inmate. One member described the execution team’s training by saying: “Training? We don’t have training, really.” A nurse responsible for mixing the drugs, when asked how much she knew about the anesthetic, said: “I don’t study. I just do the job. I don’t want to know about it.” Another team member dismissed mistakes by saying that “[expletive] does happen.” The team leader knew neither how many syringes of each of the lethal drugs should be injected nor how to tell if a condemned inmate was deeply unconscious, and he had previously been fired for bringing narcotics into San Quentin. The execution team injected the drugs from an adjoining room, which was illuminated only by a dim light bulb. The IV bags hung from so high up that team members couldn’t see if they were dripping properly.
As a remedy, Fogel gave the California Department of Corrections a choice last February: execute Morales with a single, massive dose of sodium pentothal (a single massive dose of pentobarbital, an anesthetic, is how veterinarians often put down household pets) or have a doctor present. The state chose the latter. Some experts say that an execution with just the anesthetic would take too long and be unsightly to watch, and thus the California Department of Corrections hired two anesthesiologists, who were under the impression that they would have to do “nothing.” However, on Feb. 20, 2006, the night before Morales’s scheduled execution, the U.S. Court of Appeals for the Ninth Circuit in effect ruled that the doctors would be obligated to intervene if a problem arose, and both doctors walked off the job. Morales’s execution was postponed. In December, Fogel issued his ruling, declaring California’s lethal-injection protocol unconstitutional.
Missouri is in a similar position. Two weeks after Dershwitz and Heath’s testimony, U.S. District Court Judge Fernando Gaitan Jr. ruled that he was “gravely concerned” about Doerhoff’s role and that the state was subjecting the condemned “to an unnecessary risk . . . [of] unconstitutional pain and suffering when the lethal-injection drugs are administered.” As a remedy, he ordered Missouri to hire a board-certified anesthesiologist, and in the following weeks the Missouri Department of Corrections sent letters to 298 regional anesthesiologists, hoping to recruit a new executioner. The idea that an anesthesiologist should deliver the drugs is reasonable enough; yet in demanding that the Department of Corrections find a new doctor to take part in lethal injection, Gaitan ensnared Missouri’s death penalty in a Catch-22. Not only does the American Medical Association prohibit doctors from participating in executions; nearly every other professional medical organization, including the Society of Correctional Physicians, does as well. Shortly after Gaitan’s ruling, Dr. Orin Guidry, president of the American Society of Anesthesiologists, issued a letter to his membership urging them to “steer clear” and reminding them of their obligation “to do no harm.” Adding pressure on physicians, a small group of doctors enlisted by Arthur Zitrin, an 88-year-old emeritus professor of psychiatry at New York University School of Medicine and a former director of psychiatry at Bellevue Hospital, has taken legal action against the Georgia Medical Board for failing to investigate three doctors who have acknowledged participating in executions. The group seeks a court ruling that would require the board to take disciplinary action against the doctors for violating medical ethics.
Given this climate, none of the 298 anesthesiologists queried in Missouri stepped forward to replace Doerhoff, and in mid-July the state attorney general regretted to inform Gaitan: “A requirement of using a board-certified anesthesiologist is a requirement that cannot presently be met. To enforce it may effectively bar implementation of the death penalty in Missouri.”
People on both sides of the death-penalty debate dislike the fact that executions are modeled on a medical procedure. “The final scene in the execution chamber too nearly resembles the final scene at hospices,” Robert Blecker, a professor at New York Law School who is in favor of the death penalty under certain circumstances, told me. “Doctors should not be involved with lethal injection. How we kill the people we hate should never resemble easing excruciating pain for those we love. Those settings should not even vaguely resemble each other. It’s perverse.”
Blecker, a “retributivist” proponent of the death penalty, argues that the death penalty is and should remain a deep expression of public hate, and he goes so far as to claim that some convicts deserve to die painful deaths. To underscore his point, he described men who have maintained torture chambers or who have defiled their victims while they were alive. “Do you know what Morales did?” he asked me about the murderer at the center of the lethal-injection case in California. “He ripped the flesh from a young woman’s face with a claw hammer, then dragged her face down, bleeding in excruciating pain, across a road into a ditch and then raped her and stabbed her to death. Retribution, the conscious infliction of pain and suffering because and only because some people deserve it, is the essence of punishment. The sadistic rapist murderer — why should he feel no pain as he dies?”
In his 1975 treatise “Discipline and Punish,” the philosopher Michel Foucault observed that in the West, the locus of punishment has shifted away from the body to the soul, and because execution requires an act of violence, it is a task we are almost ashamed to perform. “Foucault was not a fan of the death penalty, but he was right,” Blecker told me, “the twitching, the moaning, we can’t even tolerate that.” Executions, to be ethical, must be transparent, Blecker maintains: “My view it that executions should be public, that we should take responsibility for what we do. If we can’t face it, we should abolish it.”
Meanwhile, there are doctors who believe that if prisoners are going to die by lethal injection, they at least deserve to die in competent hands. Last March, The New England Journal of Medicine published an article titled “When Law and Ethics Collide — Why Physicians Participate in Executions.” The author, Dr. Atul Gawande, located “15 medical professionals” who had participated in executions. Four doctors and one nurse granted him interviews; only one — Dr. Carlo Musso of Georgia — did so on the record.
Musso, who is in his mid-40s, has opposed the death penalty since college. Nine years ago, however, a new jail was built down the street from the hospital where he works, and Musso began to view the prisoners as a public- health responsibility. He started working in the jail, and when the doctors who had been helping with executions in Georgia dropped the contract, the Department of Corrections offered it to Musso and his colleagues. Before accepting, Musso decided that he needed to witness an execution. He found the spectacle shocking, yet he took the job. As Musso explained to Gawande, “We, as doctors, are not the ones deciding the fate of this individual.” It is “an end-of-life issue, just as with any other terminal disease. It just happens that it involves a legal process instead of a medical process.” As Musso asks his fellow healers: if the government won’t cure the patient — stay the execution — “and the patient then dies, are you not going to comfort him?”
At the time of The New England Journal of Medicine article, Musso claimed that he didn’t want to hide behind anonymity. He knew some doctors might challenge his medical license or his A.M.A. membership, but he said that he was up for the fight. In the intervening months, however — months in which many of the people involved in administering lethal injections have been reproached — Musso stopped speaking to the media and would not respond to my attempts to contact him. Increased scrutiny of lethal injection will very likely make finding competent, sympathetic doctors more difficult. In a May 2006 editorial, the prestigious journal Nature urged its readers: “Don’t advise, don’t prescribe, don’t inject.”
In an attempt to remedy the current situation, some states are moving toward more doctor participation, and others are moving away from it. Last month, a North Carolina judge stayed three executions. Until that time, North Carolina had required a doctor to monitor the condemned’s vital signs during a lethal injection. Yet earlier in January, upon the request of physicians, the North Carolina Medical Board clarified that “physician participation in capital punishment is a departure from the ethics of the medical profession”; all executions are now delayed while the Department of Corrections tries to come up with a protocol that does not require a doctor. Meanwhile, last month in Kentucky, where state law prohibits doctors’ involvement in executions, three condemned inmates filed a suit claiming that Kentucky’s lethal-injection procedure violates federal law because the sodium pentothal, a controlled substance, is not bought or prescribed by doctors in executions. (That suit was quickly dismissed.) On Feb. 1 in Tennessee, the governor stayed four executions until lethal-injection procedures are reviewed. Austin Sarat, the Amherst professor who has tracked the history of the death penalty, speculates that states may grow tired of trying to solve the puzzle of a humane execution. “The European path was de facto abolition before de jure abolition,” he told me. “So maybe what happens is we just stop using the death penalty very much, and it gradually withers in ways that make more and more places resemble Pennsylvania — lots of people on death row, very few executions. And at that point, maybe we look around and realize we can live without it.”