It wasn’t a medical decision. It was based on the other states that had all used a similar dose.
—Donald Courts, pharmacy director at Louisiana State Penitentiary, explaining how Louisiana chose the specific chemicals and dosage amounts for its lethal injection protocol2
The only thing that mattered was that the guy ended up dead. . . . [The warden] wasn’t worried too much about the amount of medicine. He had certainly used the same types of medicine, but . . . he wasn’t totally concerned about the amounts of what it may or may not do. They ended up dead, and that’s all he was worried about.
—Annette Viator, former chief legal counsel for Louisiana State Penitentiary, explaining her discussion with a Texas warden regarding the drugs used during Texas’s lethal injection executions3
Different methods of execution have succeeded one another throughout the twentieth century in the United States, as changing public opinion and sensitivities has led public officials to reject older methods in favor of newer ones. At the time of their introduction, the electric chair and lethal gas were both touted as more humane forms of execution compared to earlier methods.4 Each, however, proved cruel. Electrocution, in particular, shocked witnesses when, for example, prisoners erupted in flames.5
In the late 1970s, states turned to lethal injection, believing this was both a less expensive as well as a more humane way to kill condemned inmates.6 In 1977, Oklahoma legislators passed the first lethal injection statute.7 Texas passed a lethal injection statue the next day.8 By 1981, five states had adopted lethal injection statutes.9 Today, thirty-seven of the thirty-eight death penalty states have lethal injection statutes.10 In nineteen states, lethal injection is the only method of execution allowed.11
States in the United States rely almost solely on lethal injections to execute condemned inmates. All twelve executions to date (as of April 1, 2006) have been by lethal injection, as were all sixty in 2005.12 Of the 1,016 executions in the United States since the death penalty was reinstated in 1976, 848 were by lethal injection—three by the federal government and the rest by states.13 At the start of 2006, there were 3,373 prisoners on death row—3,363 of whom face the possibility of a lethal injection execution.14
The statutes of fifteen states use language similar to Oklahoma’s, requiring the use of a “lethal quantity of an ultra-short acting barbiturate or other similar drug in combination with a chemical paralytic to cause death.”15 It is not clear if the legislators intended the prisoner to die from the anesthetic or from the asphyxiation caused by the paralytic agent, or both. According to Dr. Jay Chapman, the architect of Oklahoma’s two-drug statute, he “didn’t care which drug killed the prisoner, as long as one of them did.”16 Thirteen states refer to an injection of a “substance or substances in a quantity to cause death” or language very close to that wording.17 Seven states provide simply for the use of “lethal injection” executions.18 Two state statutes use slightly different language from all the rest.19 Only one state statute mandates corrections officials to choose among lethal injection options to find the most humane procedure possible.20 Despite the variations in state statutory language authorizing lethal injections, thirty-six state corrections agencies today use the same three-drug sequence of sodium thiopental, pancuronium bromide and potassium chloride in their lethal injection drug protocols.21
No state statute prescribes drug dosages and the specific methods of administration; legislators have left these decisions to corrections officials. Nor does any state statute prescribe the manner of intravenous line access, the certification or training required for those who participate in executions, or other details concerning the administration of the drugs or monitoring of the procedures.22 Legislators have given correctional agencies the authority “to promulgate necessary rules and regulations to facilitate the implementation of execution by lethal injection.”23 For example, in Florida the legislature did not specify how death by lethal injection would be accomplished, but left this decision up to the Department of Corrections, “because it has personnel better qualified to make such determinations.”24
The public record offers scant insight into the basis on which state legislatures that chose specific lethal injection drugs did so. An analysis of state statutes and legislative histories provides no evidence that legislatures—other than possibly Oklahoma—relied on, or even sought input from, medical and scientific experts.25 Rather, they simply copied the protocols developed by their colleagues from other states.