THE LETHAL INJECTION QUANDARY:

http://www.oranous.com/florida/Baze/quandary.htm

http://www.oranous.com/florida/Baze/500flspub8851.pdf

DENNO FOR BP.DOC 10/7/2007 4:22:22 PM

49

ARTICLES

THE LETHAL INJECTION QUANDARY:

THE LETHAL INJECTION QUANDARY:

HOW MEDICINE HAS DISMANTLED

THE DEATH PENALTY

THE DEATH PENALTY

Deborah W. Denno*

On February 20, 2006, Michael Morales was hours away from execution

in California when two anesthesiologists declined to participate in his

lethal injection procedure, thereby halting all state executions. The events

brought to the surface the long-running schism between law and medicine,

raising the question of whether any beneficial connection between the

professions ever existed in the execution context. History shows it seldom

did. Decades of botched executions prove it.

This Article examines how states ended up with such constitutionally

vulnerable lethal injection procedures, suggesting that physician

participation in executions, though looked upon with disdain, is more

prevalent—and perhaps more necessary—than many would like to believe.

The Article also reports the results of this author’s unique nationwide study

* Arthur A. McGivney Professor of Law, Fordham University School of Law. B.A.,

University of Virginia; M.A., University of Toronto; Ph.D., J.D., University of

Pennsylvania. I am most grateful to the following individuals for their contributions to this

article: Ty Alper, Daniel Auld, David Baldus, David Barron, Ned Benton, Douglas Berman,

Leigh Buchanan Bienen, John Blume, Edward Brunner, Peter Cannon, A. Jay Chapman, Eric

Columbus, Stanley Deutsch, Richard Dieter, Lawrence Egbert, Watt Espy, Roberta Harding,

Mark Heath, Fred Jordan, Natasha Minsker, Michael Radelet, Ellyde Roko, Ruth Wachtel,

William Wiseman, and Arthur Zitrin. I give special thanks to Daniel Auld and Ellyde Roko

for their superb efforts in collecting and analyzing the information on lethal injection

protocols, and to Ellyde Roko for excellent research assistance. Jay Chapman generously

and openly provided numerous articles, e-mails, telephone commentary, and private notes

relating to the history of lethal injection and his particular role. Members of Fordham Law

School’s library staff—Laurence Abraham, Juan Fernandez, Todd Melnick, and Larry

Reeves—gave wonderful expertise. Several individuals and organizations offered helpful

information: Michelle Christ, Steve Hall, Rick Halperin, Gary Harrington, Charles

Hoffman, Gavin Lee, Todd Maybrown, Eileen McNerney, Stephen Slater, and Wilmer

Cutler Pickering Hale and Dorr LLP. Many prison officials and administrators throughout

the country graciously provided their time and resources to describe the execution protocols

and procedures that this Article discusses. The names and affiliations of these individuals

are listed in this Article’s Appendix. I thank Fordham Law School for research funding and

the Fordham Law Review for outstanding editorial assistance. No individual or organization

acknowledged in this Article necessarily supports the Article’s interpretations or

conclusions. Responsibility for any mistakes or misjudgments rests solely with the author.

DENNO AFTER BP WITH NEW CORRECTIONS 10-6-06 10/7/2007 4:22:22 PM

50 FORDHAM LAW REVIEW [Vol. 76

of lethal injection protocols and medical participation. The study

demonstrates that states have continued to produce grossly inadequate

protocols that severely restrict sufficient understanding of how executions

are performed and heighten the likelihood of unconstitutionality. The

analysis emphasizes in particular the utter lack of medical or scientific

testing of lethal injection despite the early and continuous involvement of

doctors but ongoing detachment of medical societies. Lastly, the Article

discusses the legal developments that led up to the current rush of lethal

injection lawsuits as well as the strong and rapid reverberations that

followed, particularly with respect to medical involvement.

This Article concludes with two recommendations. First, much like what

occurred in this country when the first state switched to electrocution, there

should be a nationwide study of proper lethal injection protocols. An

independent commission consisting of a diverse group of qualified

individuals, including medical personnel, should conduct a thorough

assessment of lethal injection, especially the extent of physician

participation. Second, this Article recommends that states take their

execution procedures out of hiding. Such visibility would increase public

scrutiny, thereby enhancing the likelihood of constitutional executions.

By clarifying the standards used for determining what is constitutional in

Baze v. Rees, the U.S. Supreme Court can then provide the kind of Eighth

Amendment guidance states need to conduct humane lethal injections.
DENNO FOR BP.DOC 10/7/2007 4:22:22 PM

49

ARTICLES

THE LETHAL INJECTION QUANDARY:

THE LETHAL INJECTION QUANDARY:

HOW MEDICINE HAS DISMANTLED

THE DEATH PENALTY

THE DEATH PENALTY

Deborah W. Denno*

On February 20, 2006, Michael Morales was hours away from execution

in California when two anesthesiologists declined to participate in his

lethal injection procedure, thereby halting all state executions. The events

brought to the surface the long-running schism between law and medicine,

raising the question of whether any beneficial connection between the

professions ever existed in the execution context. History shows it seldom

did. Decades of botched executions prove it.

This Article examines how states ended up with such constitutionally

vulnerable lethal injection procedures, suggesting that physician

participation in executions, though looked upon with disdain, is more

prevalent—and perhaps more necessary—than many would like to believe.

The Article also reports the results of this author’s unique nationwide study

* Arthur A. McGivney Professor of Law, Fordham University School of Law. B.A.,

University of Virginia; M.A., University of Toronto; Ph.D., J.D., University of

Pennsylvania. I am most grateful to the following individuals for their contributions to this

article: Ty Alper, Daniel Auld, David Baldus, David Barron, Ned Benton, Douglas Berman,

Leigh Buchanan Bienen, John Blume, Edward Brunner, Peter Cannon, A. Jay Chapman, Eric

Columbus, Stanley Deutsch, Richard Dieter, Lawrence Egbert, Watt Espy, Roberta Harding,

Mark Heath, Fred Jordan, Natasha Minsker, Michael Radelet, Ellyde Roko, Ruth Wachtel,

William Wiseman, and Arthur Zitrin. I give special thanks to Daniel Auld and Ellyde Roko

for their superb efforts in collecting and analyzing the information on lethal injection

protocols, and to Ellyde Roko for excellent research assistance. Jay Chapman generously

and openly provided numerous articles, e-mails, telephone commentary, and private notes

relating to the history of lethal injection and his particular role. Members of Fordham Law

School’s library staff—Laurence Abraham, Juan Fernandez, Todd Melnick, and Larry

Reeves—gave wonderful expertise. Several individuals and organizations offered helpful

information: Michelle Christ, Steve Hall, Rick Halperin, Gary Harrington, Charles

Hoffman, Gavin Lee, Todd Maybrown, Eileen McNerney, Stephen Slater, and Wilmer

Cutler Pickering Hale and Dorr LLP. Many prison officials and administrators throughout

the country graciously provided their time and resources to describe the execution protocols

and procedures that this Article discusses. The names and affiliations of these individuals

are listed in this Article’s Appendix. I thank Fordham Law School for research funding and

the Fordham Law Review for outstanding editorial assistance. No individual or organization

acknowledged in this Article necessarily supports the Article’s interpretations or

conclusions. Responsibility for any mistakes or misjudgments rests solely with the author.

DENNO AFTER BP WITH NEW CORRECTIONS 10-6-06 10/7/2007 4:22:22 PM

50 FORDHAM LAW REVIEW [Vol. 76

of lethal injection protocols and medical participation. The study

demonstrates that states have continued to produce grossly inadequate

protocols that severely restrict sufficient understanding of how executions

are performed and heighten the likelihood of unconstitutionality. The

analysis emphasizes in particular the utter lack of medical or scientific

testing of lethal injection despite the early and continuous involvement of

doctors but ongoing detachment of medical societies. Lastly, the Article

discusses the legal developments that led up to the current rush of lethal

injection lawsuits as well as the strong and rapid reverberations that

followed, particularly with respect to medical involvement.

This Article concludes with two recommendations. First, much like what

occurred in this country when the first state switched to electrocution, there

should be a nationwide study of proper lethal injection protocols. An

independent commission consisting of a diverse group of qualified

individuals, including medical personnel, should conduct a thorough

assessment of lethal injection, especially the extent of physician

participation. Second, this Article recommends that states take their

execution procedures out of hiding. Such visibility would increase public

scrutiny, thereby enhancing the likelihood of constitutional executions.

By clarifying the standards used for determining what is constitutional in

Baze v. Rees, the U.S. Supreme Court can then provide the kind of Eighth

Amendment guidance states need to conduct humane lethal injections.