Physician Participation in Capital Punishment

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

http://www.oranous.com/florida/Baze/8209c.pdf

COMMENTARY

Physician Participation in Capital Punishment

DAVID WAISEL, MD

I
I
f state administration of capital punishment is legal and
ongoing, humane methods of execution should be
sought and applied. In medieval times, the condemned and
their families would bribe the executioner to make death
quick and painless. In the 18th century, Dr Joseph-Ignace
Guillotin proposed amending the French penal code to
require executioners to use what is now known as the
guillotine, believing that to be a more humane method of
execution. In the United States, hanging was the predominant
method of execution until electrocution was introduced
as a more humane method in 1890.1 One of the
subtexts of electrocution was Thomas Edison’s attempts to
promote his direct current electricity by tainting the competing
alternating current electricity through its association
with the electric chair.1 Cyanide gas was introduced in
1924.2 Hanging, electrocution, and chemical asphyxiation
were the primary methods of execution until the introduction
of lethal injection in 1977.2 Lethal injection has been
the predominant form of execution in the 699 executions in
the United States during the past 10 years.3 Recent concerns
about the technical issues surrounding legal execution,
most specifically regarding drug delivery, have
prompted some persons to suggest that physician participation
in capital punishment would minimize these problems.

Opposing the involvement of physicians is the American
Medical Association (AMA), which prohibits physician
participation in legally authorized executions. According
to the AMA’s published position statements,4 “An individual’s
opinion on capital punishment is the personal moral
decision of the individual. A physician, as a member of a
profession dedicated to preserving life when there is hope
of doing so, should not be a participant in a legally authorized
execution.” The AMA further stated that physician
participation in capital punishment “distorts the purpose
and role of medicine and its professionals in the preservation
of life. The use of physicians and medical technology
in execution presents a conceptual contradiction for society
and the public. The image of physician as executioner
under circumstances mimicking medical care risks the general
trust of the public.”

The Code of Medical Ethics of the AMA prohibits physicians
from “an action which would directly cause the death of
the condemned [and] an action which would assist, supervise
or contribute to the ability of another individual to directly
cause the death of the condemned.”5 Prohibitions include
nearly all aspects of lethal injection such as “selecting injection
sites; starting intravenous lines as a port for a lethal

injection device; prescribing, preparing, administering, or supervising
injection drugs or their doses or types; inspecting,
testing, or maintaining lethal injection devices; and consulting
with or supervising lethal injection personnel.”5

In this commentary, I argue that poorly done executions
needlessly hurt the condemned and that, in the case of
lethal injections, the problems center not on the specific
drugs chosen but on establishing and maintaining intravenous
access and assessing for anesthetic
depth. I argue that it is honor-

For editorial

able for physicians to minimize the

comment, see

harm to these condemned individu

pages 1043 and

als and that organized medicine has

1047
an obligation to permit physician
participation in legal execution. By participation, I mean to
the extent necessary to ensure a good death. This includes
designing protocols both in general and for specific condemned
persons and participating in the performance of
these protocols, up to and including gaining intravenous
access and giving drugs.

I will not address the policy of capital punishment. Although
numerous issues surround capital punishment (appropriateness,
fairness, and effectiveness as a crime deterrent,
etc), they are beyond the scope of this article. The
purpose of this commentary is to address physician participation
in the ongoing practice of lethal injection.

THE NEED FOR PHYSICIAN PARTICIPATION

Lethal injection is the predominant form of execution in the
United States, in part because it is considered more humane
than hanging, electrocution, and chemical asphyxiation. In
1977, an anesthesiologist suggested a process that appeared
to mimic a typical induction of anesthesia: sodium thiopental
to cause unconsciousness, pancuronium bromide to

From the Department of Anesthesiology, Perioperative and Pain Medicine,
Children’s Hospital Boston, Boston, MA.

The opinions in this commentary are entirely those of the author and do not
reflect the views of his hospital (Children’s Hospital Boston), academic institution
(Harvard Medical School), principal professional society (the American
Society of Anesthesiologists), or any other organization with which he is
affiliated. The author acknowledges that—contrary to his own views—the
American Society of Anesthesiologists “continues to agree with the position of
the American Medical Association on physician involvement in capital punishment”
and wholly repudiates physician participation in capital punishment.
(Available at: www.asahq.org/publicationsAndServices/standards/41.pdf.
Accessibility verified April 26, 2007.)

Individual reprints of this article are not available. Address correspondence to
David Waisel, MD, Department of Anesthesiology, Children's Hospital Boston,
300 Longwood Ave, Boston MA 02115 (david.waisel@childrens.harvard.edu).

© 2007 Mayo Foundation for Medical Education and Research

Mayo Clin Proc. • September 2007;82(9):1073-1080 • www.mayoclinicproceedings.com 1073

PHYSICIAN PARTICIPATION IN CAPITAL PUNISHMENT

paralyze the muscles, and (in the case of lethal injection)
potassium chloride to stop the heart.6

In anesthetic practice, after a drug to induce anesthesia
(like sodium thiopental) is given, anesthesiologists test for
adequate depth of anesthesia, sometimes using a hands-on
assessment like an eyelash reflex (touching the eyelashes to
see if the eyelids flutter). A normal induction dose of 3 to 5
mg/kg of thiopental would be expected to produce unconsciousness
in approximately 30 seconds and peak respiratory
depression in 1 to 1.5 minutes.7 It is not uncommon for
respiratory attempts to return shortly thereafter. Pancuronium
bromide, a paralytic with no anesthetic properties,
is given in a dose of 1 mg/kg and within 4 minutes
produces muscle relaxation to facilitate tracheal intubation.8

San Quentin Operational Procedure No. 770 describes
how a typical lethal execution is to be done9; 2 intravenous
lines are inserted, and saline flows through 1 of the lines.
Individuals other than the condemned person leave the
room. The door is sealed. Through injection ports located
outside the room, 5 g of sodium thiopental (ie, 10 times the
500-mg induction of anesthesia dose for a man weighing
100 kg) is given in “[A] steady even flow…maintained
with only a minimum amount of force applied to the syringe
plunger.” The intravenous line is then flushed with 20
cm3 of normal saline. Two syringes of 50 mg of pancuronium
bromide in 50 cm3 of diluent (ie, a total of 100
mg, 10 times the 10-mg dose given for a man weighing 100
kg) are then “injected with slow, even pressure on the
syringe plunger,” and the intravenous line is flushed with
20 cm3 of normal saline. Two syringes of 50 mEq of
potassium chloride in 50 cm3 of diluent (a total of 100 mEq
of potassium chloride) are then injected.9

If this process is performed correctly, the inmate will be
unconscious before receiving pancuronium bromide and
potassium chloride.7, 10 These massive doses of sodium
thiopental should both stop breathing and cause unconsciousness
in 1 minute.11 In the absence of a hands-on
assessment of anesthetic depth, sustained apnea becomes a
reasonable surrogate for adequate delivery of the massive
doses of sodium thiopental. Sustained apnea guarantees a
sufficient depth of anesthesia.

In contrast, spontaneous ventilation after sodium thiopental
indicates that the desired dose of sodium thiopental
was not delivered. Spontaneous ventilation does not indicate
awareness, but it also does not confirm anesthesia.

The presence of apnea after administration of pancuronium
bromide is not a guarantee that the sodium thiopental
was delivered. A dose that is 3 times a normal intubating
dose of pancuronium (ie, 30 mg instead of 10 mg in a man
weighing 100 kg) will cause muscle relaxation within 1
minute.8 Thus, only a fraction of the pancuronium bromide
needs to be successfully administered to cause apnea. Ap

nea after pancuronium bromide, instead of after sodium
thiopental, does not indicate that the inmate was anesthetized
before the pancuronium bromide. If the inmate was
not anesthetized before the administration of pancuronium
bromide and potassium chloride, the inmate may have the
sensation of paralysis without anesthesia (known as awareness)
and may feel the burning of the highly concentrated
potassium chloride.

One problem with lethal injection is obtaining venous
access, leading to extensive and painful attempts, including
placement of central venous access.12 A more concerning
problem is inadequate medication delivery during the execution.
This can occur from technical errors and procedural
errors (Table 1). For example, in 6 executions since 1999 in
California, the condemned had reactions such as respirations
and tachycardia, which may have been consistent with
awareness or pain.11 The possible patterns of successful and
botched lethal injection are listed in Table 2 and Table 3.

Other problems exist with drug delivery. In 1994 in
Illinois, with use of a machine to inject the sodium thiopental
and pancuronium bromide, the intravenous catheter
clogged, leaving the inmate snorting and his belly “heaving
up and down with the breathing.”14 After the botched execution,
the spokesman for the corrections department
stated, “It looks like the two drugs just don’t mix…they get
tacky and don’t flow when they come together.”18 The same
problem had happened the only previous time the machine
was used 4 years earlier.

In 1995 in Missouri, the arm restraint functioned as a
tourniquet, prolonging the process and bringing into question
the sensations of the condemned person.21 The county
coroner said that the heartbeat stopped several minutes
after the strap was loosened, suggesting that the sodium
thiopental, pancuronium bromide, and potassium chloride
entered the bloodstream at the same time, not giving the
sodium thiopental time to work, and increasing the likelihood
that the condemned person was aware while paralyzed
or felt the burning from the potassium chloride. The
inmate was “gasping, slightly convulsing” 7 minutes after
initiation of the lethal injection.21 The coroner declared that
it was “a little error. It’s not like the guy suffered.”21

In 2006 in Ohio, after a difficult insertion of an intravenous
line, the execution team chose not to insert a second
intravenous line (as apparently called for by prison procedures)
22 and injected the drugs. The inmate appeared to
have fallen asleep, with shallow breathing. But shortly
thereafter, he “raised his head and, frustrated, shook it back
and forth, repeatedly declaring, ‘it don’t work.’”22 The
execution team obtained additional intravenous access,
mistakenly connected the intravenous line to the failed
intravenous catheter, administered the drugs, noticed a reaction
by the inmate, subsequently reconnected the intrave-

Mayo Clin Proc. • September 2007;82(9):1073-1080 • www.mayoclinicproceedings.com

See, e.g., David Waisel, Physician Participation in Capi-
tal Punishment, 82 Mayo Clinic Proceedings 1073, 1078 (2007)

http://www.nytimes.com/2007/02/11/magazine/11injection.t.html?pagewanted=1

February 11, 2007

The Needle and the Damage Done

By ELIZABETH WEIL

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?"

"Absolutely not."

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."

Elizabeth Weil is a contributing writer for the magazine. Her last article was on intersex babies.

31 Tr. of Test. of John Doe No.1 at 10, Taylor v. Crawford,
No. 05-4173 (W.D. Mo. June 5, 2006).

“Dr Doe,” the surgeon whom the Missouri Department of Corrections selected to be their executioner

Missouri

• “Dr Doe,” the surgeon whom the Missouri Department of Corrections selected to be their executioner, had no training in anesthesia and was unable to calculate or keep track of doses of drugs because he was dyslexic. (Trial Tr., 122-123, Sept. 20, 2006, in Evans v. Saar, No. 06-149 (N.D. Md.). By his own estimate, he had been sued for malpractice more than 20 times, and two hospitals had revoked his privileges. (Jeremy Kohler, Behind the Mask of the Execution Doctor, St. Louis Post-Dispatch, July 30, 2006.) As of June, 2006, Dr. Doe testified that he was “still improvising” the execution procedures. (Dep. Tr. of John Doe 1 in Taylor v. Crawford, No. 05-4173 (W.D. Mo.), at 10 (June 5, 2006).

Use of malpractice doctors in executions

Some earlier coverage is here

The question now is if these non-functional doctors still are let to work inside the
execution system with the help of an american secrecy policy and no possibility for insight
by the public.

In Florida we now have the identities of most of the executions doctors and some of them have now run away to save themselves from public insight. Not bad.

But what has Florida done to replace them?

We soon will know.

Right now you can follow the link to Indiana

After Flawed Executions, States Resort to Secrecy

http://law.fordham.edu/ihtml/news-2itndetails.ihtml?id=638&nid=561

After Flawed Executions, States Resort to Secrecy
Ellyde Roko in New York Times, July 30, 2007

Media Source: nytimes.com

After Flawed Executions, States Resort to Secrecy

By ADAM LIPTAK
A Missouri doctor who had supervised more than 50 executions by lethal injection testified last year that he sometimes gave condemned inmates smaller doses of a sedative than the state’s protocol called for, explaining that he is dyslexic. “So it’s not unusual for me to make mistakes,” said the doctor, who was referred to in court papers as John Doe I.

The St. Louis Post-Dispatch identified him last July as Dr. Alan R. Doerhoff, revealing that he had been a magnet for malpractice suits arising from his day job as a surgeon and that two hospitals had revoked his privileges. In September, a federal judge barred Dr. Doerhoff from participating “in any manner, at any level, in the State of Missouri’s lethal injection process.”

Naturally, state lawmakers took action to address the issue.

A new law, signed this month by Gov. Matt Blunt, makes it unlawful to reveal “the identity of a current or former member of an execution team,” and it allows executioners to sue anyone who names them.

The governor explained that the law “will protect those Missourians who assist in fulfilling the state’s execution process.”

In the wake of several botched executions around the nation, often performed by poorly trained workers, you might think that we would want to know more, not less, about the government employees charged with delivering death on behalf of the state.

But corrections officials say that executioners will face harassment or worse if their identities are revealed, and that it is getting hard to attract medically trained people to administer lethal injections, in part because codes of medical ethics prohibit participation in executions.

The Missouri law addresses that point, too. It bars licensing boards from taking disciplinary actions against doctors or nurses who participate in executions.

The job of executioner has never been a high-status profession, of course, which accounts for the hoods that hangmen wore. But in the old days, as John D. Bessler wrote in a history of executions, killing condemned prisoners “called for no expertise apart from the ability to tie a knot.”

Lethal injections are different. They require executioners to insert catheters and to prepare three chemicals and inject them, in the right dosage and sequence, into intravenous lines. If the first chemical is ineffective as a sedative, the other two are torturous.

Yet a federal judge in California found last year that prison execution teams there had been poorly screened and included people who had been disciplined for smuggling drugs and who had post-traumatic stress disorder.

In a decision a week ago Sunday, a state court judge in Florida, Carven D. Angel, halted the execution of a death row inmate, saying, “We need to have people with competence and experience” to perform executions.

But, according to lethal injection procedures issued by Florida’s corrections department in May, there is only one job requirement to be an executioner there: you must be “a person 18 years or older who is selected by the warden to initiate the flow of lethal chemicals into the inmate.”

Those credentials struck Judge Angel as a little thin.

“I don’t think that any 18-year-old executioner,” the judge said from the bench, “with the pressure of a governor’s warrant behind him to carry out an execution, and with the pressure of the whole world — the press and the whole world — in front of him and looking at him is going to have enough experience and competence to stop an execution when it needs to be stopped.”

The concern is not hypothetical. In December, Florida executioners had to inject Angel N. Diaz, a convicted murderer, with a second dose of lethal chemicals after the first set did not do the trick. It took Mr. Diaz 34 minutes to die, and witnesses said he continued to move, squint and mouth words after the first dose hit.

It would be good to know more about who is performing executions in Florida. But that state’s law, like Missouri’s, forbids the disclosure of “information which identifies an executioner.” Quite a few states have similar laws, and a new Virginia law shielding executioners came into effect this month.

A forceful and persuasive article published in the Fordham Law Review in April argued for “a right to know who is hiding behind the hood.”

Its author, Ellyde Roko, who will start her third year of law school at Fordham in the fall, said in an interview that society’s interest in knowing how the death penalty is administered should outweigh the relatively flimsy interests supporting secrecy. “Not knowing who the executioners are takes away a huge check on the system,” she said.

A 2002 decision of the federal appeals court in San Francisco allowing the press and public to view executions in California supports Ms. Roko’s position.

“Even assuming an execution team member were identified by a witness, the notion of retaliation is pure speculation,” Judge Raymond C. Fisher wrote for a unanimous three-judge panel. “No execution team member has ever been threatened or harmed by an inmate or by anyone outside the prison because of his participation in an execution.”

Indeed, Judge Fisher continued, there are far more likely targets for retaliation, including the warden, the governor and the judges who rejected the condemned prisoner’s appeals. And all of their names are public.

Email: fordhamlawyer@law.fordham.edu

Untrained Personnel and Lack of Transparency

Untrained Personnel and Lack of Transparency

Lethal injection with the three-drug protocol presents significant, foreseeable, predictable, and preventable risks of pain and suffering.
Its administration is a complicated procedure that requires placing the inmate in a deep anesthetic state with the first drug to ensure that he does not consciously experience paralysis and asphyxiation or the excruciating pain of cardiac arrest caused by the second and third drugs. Personnel responsible for administering lethal injections must perform a series of medical tasks, including inserting IV catheters, mixing and administering drugs, monitoring IV lines, and monitoring the inmate’s level of consciousness. An error at any step could lead to a torturous execution. For this reason, states must use trained, qualified personnel to perform lethal injection executions in order to conform to minimum standards of safe care. Additionally, lethal injection procedures must include measures or checks to ensure that the inmate is sufficiently anesthetized throughout the lethal injection procedure.

While lawsuits across the country have drawn attention to the foreseeable risks of cruel and unusual punishment that departments of correction are ignoring by insisting on using the flawed three-drug protocol, there remains much that is not known about lethal injection. This lack of knowledge results in large part from the shroud of secrecy surrounding lethal injection practices. Departments of Correction regularly rely on executive privilege to maintain the secrecy of lethal injection procedures. They often do not allow public access to the written protocols they follow in administering lethal injections, nor will they reveal how those protocols were developed. Few records are kept that document lethal injections, and those that do exist are not made available to the public or for scrutiny by medical personnel. Thus, states have insulated themselves from revealing that they have failed to protect inmates against the known and foreseeable risks of torturous execution inherent in their lethal injection procedures, just as the paralytic effect of the pancuronium bromide prevents the public from knowing how many inmates were conscious and experienced excruciating pain during the execution.

Execution protocol training agenda April 2007 in Indiana

Documents related to training conducted by the federal government for state department of corrections personnel from several states, including California, Arizona, Florida, Missouri, and Tennessee.


http://www.oranous.com/florida/MarkSchwab/federaltraining.pdf

Doctor barred by Missouri helps in federal executions

http://www.latimes.com/news/nationworld/nation/la-na-johndoe15nov15,1,7901439.story?coll=la-headlines-nation&ctrack=1&cset=truetemplate_bas

template_bas

A judge cites the physician's dyslexia in banning him from participation in state lethal injections. His role has been cited in several death penalty challenges.

By Henry Weinstein, Los Angeles Times Staff Writer
2:07 PM PST, November 15, 2007

A doctor who was barred from taking part in executions in Missouri because of concerns his dyslexia would interfere with his ability to administer lethal injections is helping the federal government carry out death sentences in Indiana, according to court documents.

The physician has been the target of more than 20 malpractice suits, was barred from practicing at two hospitals and was publicly reprimanded by a state agency for failing to disclose those suits to a hospital where he treated patients, according to the St. Louis Post-Dispatch. The newspaper identified the doctor as Alan R. Doerhoff of Jefferson City, Mo.

---

FOR THE RECORD:


Lethal injections: A story in Thursday's Nation section about a doctor who assists in executions overseen by the federal government misidentified Ty Alper, associate director of the death penalty clinic at UC Berkeley's Boalt Hall School of Law, as Tyler L. Alper.

---

Last year, U.S. District Judge Fernando J. Gaitan Jr. of Kansas City, Mo., banned Doerhoff from participating "in any manner, at any level" in lethal injections in Missouri.

The judge said earlier he was "gravely concerned" that the doctor responsible for "mixing the drugs which will be responsible for humanely ending the life of condemned inmates, has a condition [dyslexia] which causes him confusion with regard to numbers."

Federal officials, however, have made Doerhoff part of the execution team at the federal prison in Terre Haute, Ind., according to court papers filed on behalf of several inmates there. All condemned federal prisoners are executed at that prison.

Among those executed there was Oklahoma City bomber Timothy J. McVeigh.

Doerhoff's role is to place intravenous lines in condemned inmates, monitor their levels of consciousness and sign death certificates, according to the papers.

Doerhoff did not respond to requests for comment, and Justice Department spokesman Erik Ablin declined to comment.

Traci Billingsley, U.S. Bureau of Prisons spokeswoman, said the agency does not comment on pending litigation and does not make public the names of staff involved in lethal injections.

Washington attorney Paul F. Enzinna, one of the Indiana inmates' lawyers, also declined to comment.

Doerhoff's role in federal executions emerged in one of several challenges to lethal injection filed in courts around the country.

Thirty-seven states and the federal government use a three-drug cocktail to execute prisoners: the fast-acting sedative thiopental, a paralyzing drug and a heart-stopping drug.

Although ostensibly more humane than prior execution methods, lethal injection is often performed by untrained, unqualified prison employees using inadequate equipment, creating an unnecessary risk of excessive pain in violation of the constitutional ban on cruel and unusual punishment, the suits allege.

The U.S. Supreme Court is set to hear a challenge to Kentucky's executions by lethal injection on Jan. 7.

During the court challenges, officials have cloaked Doerhoff's identity in extraordinary secrecy. In the Missouri case, he was referred to as "John Doe One" and allowed to sit behind a screen during a deposition so that lawyers for condemned inmate Michael Taylor could not see him being questioned.

In the latest challenge, Roane vs. Gonzales, filed in Washington, the inmates' lawyers refer to Doerhoff as "Protected Person No. 2." About a dozen lines in the October brief were redacted.

Doerhoff was cited as "Dr. Doe" in a friend-of-the-court brief filed Tuesday in the lethal injection challenge before the Supreme Court.

"The most well-known example of a jurisdiction entrusting its execution administration to an incompetent individual is the infamous 'Dr. Doe' in Missouri," says a brief written by lawyers from the death penalty clinic at UC Berkeley's Boalt Hall School of Law.

The brief contends that even though Doerhoff had played a key role in more than 50 executions, he had not followed written instructions but instead "varied the amount of thiopental he gave inmates on a whim, without informing anyone."

The Missouri doctor also said that he had cut the thiopental dosage he gave inmates by half because a change in drug packaging forced him to "improvise," the brief said.

"The federal government chose to rely upon the only person in the country who has been explicitly barred by a federal court from participating in lethal injection executions," said the brief, written under the supervision of Tyler L. Alper, associate director of the death penalty clinic.

Fordham University law professor Deborah Denno, an expert on capital punishment methods who is closely following the challenges to lethal injection, said that Gaitan, an appointee of President Reagan, issued his order after "a thorough and detailed examination of Dr. Doerhoff's shocking lack of knowledge of the basic tenets of the drugs and procedures involved in a lethal injection execution, Dr. Doerhoff's admitted challenges with dyslexia that affected his ability to mix and measure the drugs, as well as his record of more than 20 malpractice suits and revoked privileges at two hospitals."

Denno said the revelations about Doerhoff illustrated "the need for transparency in the identity of executioners" so that their records could be scrutinized.

henry.weinstein@latimes.com

Lethal Injection Litigation Is Exposing More Than Torturous Executions

Capital Cases September/October 2006, Page 41 Lethal Incompetence By Ty Alper Lethal Injection Litigation Is Exposing More Than Torturous Executions It’s not unusual for me to make mistakes. . . . I am dyslexic and that is the reason why there are inconsistencies in my testimony. I can make these mistakes, but it’s not medically crucial in the type of work I do as a surgeon. — Deposition Testimony of Dr. Alan R. Doerhoff, Doctor Responsible for Executions in Missouri, June 5, 20061 Six years ago, conservative columnist George Will declared himself appalled by the real probability that innocent people have been executed in this country. “Capital punishment, like the rest of the criminal justice system,” he wrote, “is a government program, so skepticism is in order.”2 Press coverage of the recent explosion of litigation around the country challenging lethal injection suggests that it may well generate a similar strain of skepticism among even death penalty proponents, particularly those who believe that lethal injection is a simple and humane method of execution, as it has been billed for so many years. Just as people are asking whether we have always executed the “right” person, there is now legitimate debate about whether our system is capable of getting it “right” when it comes to the actual practice of putting people to death. Is it possible for us to do so in a humane manner? Or has the lethal injection litigation once again revealed the fallibility of this all-too-human endeavor? Background on Lethal Injection Litigation challenging lethal injection has progressed in a number of states, and is likely to increase in the wake of the Supreme Court’s decision in Hill v. McDonough,3 which affirmed the right of death row inmates to challenge lethal injection as a civil matter pursuant to 42 U.S.C. § 1983. As a result, at this time next year, we are likely to know much more than we do now about lethal injection and how it is administered in death chambers across the United States. But what we know now is enough to conclude that it is very likely that, in numerous instances, men and women have been tortured as they were executed by this procedure. All states that employ lethal injection do so by injecting inmates with a series of three powerful drugs. The first, sodium pentothal (or thiopental), is used to render the inmate unconscious. The second, pancuronium bromide (or similar drug), paralyzes the inmate. The third, potassium chloride, induces cardiac arrest. In short, the three-drug cocktail is intended to (1) put the inmate to sleep; (2) make him appear peaceful by eliminating his ability to move or cry out; and (3) stop his heart. One problem with the sequence of drugs used in lethal injections is that there is absolutely no medical justification for the administration of the second drug, pancuronium bromide. This drug paralyzes the inmate, yet does not affect his consciousness or his ability to feel pain.4 The induction of general anesthesia is a complex process and there are multiple opportunities for problems that would thwart the successful achievement of the appropriate level of anesthesia.5 Obviously, the risk of error is greatly amplified if the anesthetic procedures are performed and monitored by unqualified staff in a prison setting as opposed to trained anesthesiologists in a hospital. If it turns out that the inmate is not appropriately anesthetized by the first drug, the inmate may suffer excruciating suffocation caused by a paralyzing dose of pancuronium bromide and the heart attack induced by the potassium chloride, all without being able to say anything or even blink an eye to communicate awareness. This can occur if, for example, there has been an error in the mixing of the anesthetic or an unnoticed leak in the tubes that deliver the drug. In this scenario, although the inmate is in agonizing pain, the witnesses to his execution will see a “peaceful” death. Indeed, there appears to be no justification for the use of the second drug other than that it ensures, in most cases, that the execution will occur without causing undue distress to the witnesses. Pancuronium bromide is, therefore, essentially used to maintain the illusion that lethal injection is a painless, humane, and simple procedure. In reality, its use masks the potentially horrifying effects of inadequately administered doses of the anesthetic and heart-stopping drugs. Consider, for example, a recent case from Salt Lake City. After being euthanized by lethal injection, a dog awoke as it was being put into the crematorium. When the animal shelter officials realized that the dog was not dead, they pulled it out of the oven and administered another injection to properly euthanize the animal.6 Had the dog been given pancuronium bromide prior to the lethal injection, the shelter officials never would have known that the euthanasia had failed, and the dog would have been burned alive. It is for precisely this reason that as many as 30 states now outlaw the use of neuromuscular blocking agents such as pancuronium bromide when euthanizing animals.7 Unfortunately, the strict laws and regulations governing the euthanasia of animals do not apply to the execution of human beings. What does govern the use of lethal injection? Are lethal injections, in fact, being administered according to properly vetted protocols by trained medical professionals? If so, death penalty proponents can be comforted in the knowledge that as long as the rest of the legal process works, the execution itself will be a simple formality. But if not, there is reason to doubt whether lethal injection is even an improvement over the electric chair or the gas chamber. After all, there is a growing consensus, even among experts retained by various states,8 that an un-anesthetized execution amounts to torture.9 What a difference a little due process makes. Until recently, courts have generally assumed that well-crafted protocols exist, and that these protocols have been diligently followed by the anonymous people asked to carry them out. Lethal injection claims have been viewed skeptically, as last-ditch efforts to stave off executions as opposed to serious challenges to a potentially torturous medical procedure that the prison has chosen to undertake. Now that counsel for death row inmates are beginning to shed light on the process – through discovery, public records requests, and evidentiary hearings – it is no longer possible to maintain with a straight face the blithe assumption that lethal injection is being administered humanely. In hindsight, perhaps it should not have been surprising to discover that the fallibility that pervades the criminal justice system does not evaporate when the last appeal is exhausted and the warden gives the signal to begin the execution process. “It is not Unusual for Me to Make Mistakes.” The case of Michael Anthony Taylor, a death row inmate in Missouri, is beginning to read like a legal thriller about which you might conclude, “There’s no way this would happen in real life.” After months of litigation, when Taylor was within hours of execution, his attorneys were finally allowed to depose the anonymous “Dr. John Doe #1,” who, as it turns out, is responsible in almost every way for the procedures used in Missouri’s executions. Through the deposition of Dr. Doe10 as well as discovery of documents and records related to the previous six Missouri executions, Taylor’s lawyers learned that the state of Missouri has no written protocol for the administration of lethal injection. Dr. Doe, a surgeon with no formal training in anesthesiology, has sole discretion to determine how executions are carried out. He reports to no one.11 Moreover, on his own and without telling anyone, Dr. Doe recently decided to start giving inmates half the amount of anesthetic previously given prior to the injection of the paralyzing agent. He did so apparently in response to a change in the drug’s packaging that forced him to “improvise.”12 It gets worse. Dr. Doe is dyslexic and admitted that “[i]t is not unusual for me to make mistakes,” including the transposition of numbers. Although he is not an anesthesiologist, Dr. Doe claimed to be able to monitor the condemned inmate’s level of consciousness simply by viewing his facial expression from another room, through a window obstructed by blinds.13 Finally, Dr. Doe testified that the nurses who actually conducted the injections did so from within a darkened room, using a small flashlight to help them see what they were doing.14 Needless to say, these revelations did not reflect well on the state. An editorial in the St. Louis Post-Disptach opined, “You have to admire the dedication and persistence of a man who overcomes the learning disability of dyslexia and becomes a surgeon. However, you don’t ask such a man to prepare the three-drug ‘cocktail’ used in executing condemned prisoners.”15 The federal district court judge presiding over the Taylor litigation agreed, and has halted all executions in Missouri until the state proposes a protocol that meets constitutional safeguards, including the participation of board-certified anesthesiologists.(So far, the state has been unable to find any willing participants, despite sending letters to 298 anesthesiologists in Missouri and Illinois, asking for assistance in executions and promising compensation.)16 After the judge’s ruling in Taylor, the St. Louis Post-Dispatch revealed that “Dr. Doe” was a Missouri doctor named Alan R. Doerhoff. The doctor had been sued for malpractice more than 20 times and was publicly reprimanded by the State Board of Healing Arts for concealing the malpractice suits from a hospital where he was a treating physician.17 The state was well aware of Dr. Doerhoff’s reprimand and professional troubles; in fact, the office of the Missouri Attorney General both defended the Taylor litigation and signed off on the discipline of Dr. Doerhoff.18 Yet the state fought to keep his identity a secret and said it would have no hesitation in allowing him to continue to carry out executions.19 Is the Taylor case an aberration? Hardly. In Alabama, prison officials scrambled at the last minute in an effort to figure out how to execute David Larry Nelson, whose veins were severely compromised by a lifetime of intravenous drug use. After initially refusing to tell Nelson how they were going to gain venous access in order to inject the lethal drugs, the prison administration came up with a procedure involving the “external carotid vein” in his neck as well as the “saphenous vein” in his arm. As Nelson’s lawyers pointed out, human beings do not have an external carotid vein – cows do – and the saphenous vein is located in the leg, not the arm.20 State officials also proposed using a so-called “cut-down” procedure to locate a vein, which would involve making a series of sharp incisions though the skin and through several layers of connective tissue, fat, and muscle – all with only local anesthetic. Citing expert testimony that such a procedure was likely to be intolerably painful and dangerous, Nelson took his case to the Supreme Court. The Court, in a precursor to the Hill case, held that the lawsuit could proceed as a § 1983 action.21 The Taylor and Nelson cases are but two examples of incompetent administration of lethal injection in the absence of established protocols. There are likely more that we do not know about because lawyers have not yet gained access to crucial discovery in many states. It is worth noting that the same district court judge who halted all executions in Missouri after hearing from Dr. Doe had, just months earlier, on the basis of a much more limited hearing, concluded that there is no “significant risk that the means and method which the Missouri Department of Corrections uses will cause unnecessary pain and suffering.”22 Tinkering With the Machinery of Death Justice Harry Blackmun famously declared in 1994 that, “[f]rom this day forward, I shall no longer tinker with the machinery of death.”23 Yet the states continue to literally tinker away, making cosmetic and inadequate changes to their lethal injection protocols, often only days or even hours before the executions are scheduled to take place. The state of North Carolina, for example, recently executed Willie Brown Jr., after changing its lethal injection protocol at the last minute to include the use of a bispectral index (BIS) monitor, which the state claimed would ensure – without the presence of a physician – that the inmate was properly anesthetized. It is widely acknowledged in the field of anesthesiology, however, that the BIS monitor alone is insufficient to monitor anesthetic depth, as the manufacturer of the machine clearly states in its literature.24 The medical director of the company that manufacturers the machines is so concerned that the BIS monitor is being contemplated for use in executions that he has refused to sell any more to states, and has said that the sale of one machine to North Carolina was a “regrettable” mistake.25 California, home to the nation’s largest death row, has fared no better when it comes to developing a lethal injection protocol that ensures a “humane” execution. A federal district court judge recently rejected the state’s protocol, which had been developed without the participation of any medical personnel. Prior to the scheduled execution of Michael Morales, the judge required that the state either procure the assistance of an anesthesiologist to verify the inmate’s unconsciousness or change its method of execution to a lethal overdose of sodium pentothal, the first drug in the three-drug cocktail.26 The state initially found two anesthesiologists who were willing to participate, but these doctors backed out hours before the scheduled execution, apparently because they had not been told by state officials that they would be required to affirmatively intervene if the execution was not proceeding smoothly.27 The next day, the state asked the judge for permission to execute Morales at 7:30 that evening by administering an overdose of sodium pentothal, an execution method that had never before been used in the United States. When the judge required that someone inject the overdose directly into Morales’ veins, the state declined to go forward and the execution was postponed pending further hearings. Conclusion I will believe in the death penalty when you will prove to me the infallibility of human beings. — Marquis de Lafayette Ongoing lethal injection litigation has established, and brought to the public consciousness, two interrelated points: first, that it matters whether the people involved in lethal injections know what they are doing; and second, that, in fact, they often do not. The unseemly scramble to execute Michael Morales in California – using a method of execution developed for the first time on the day of the scheduled execution – should give even death penalty proponents pause. So should the state of Missouri’s reliance on an incompetent doctor to perform its executions. Just as there are some who are untroubled by the possibility that we have executed innocent people, there will always be some who are untroubled by the possibility that we are executing condemned inmates by torturing them to death. But many others should be, and will be, concerned that lethal injection is yet another aspect of this massive “government program” that is fraught with error. Notes 1. See Taylor v. Crawford et al., Case No. 05-4173-CV-S-FJG (W.D. Mo.) (Redacted testimony of Dr. John Doe #1), June 5, 2006, at 25, available at http://www.law.berkeley. edu/clinics/dpclinic/Lethal%20Injection%20Documents/Missouri/Taylor/June%202006%20Hearing/1983%20PR%20John%20Doe%20I%20Deposition%20Tr%20Redacted.pdf. 2. George Will, A Must-Read Horror Book, Jewish World Review, April 6, 2006, available at http://www.jewishworldreview. com/cols/will040600.asp. 3. 126 S.Ct. 2096 (2006). 4. Pancuronium bromide is used during some surgeries to prevent the involuntary contraction of muscles. 5. Indeed, cases involving what is known as anesthetic (or intra-operative) awareness are well known. In such cases, patients wake up during surgery and suffer the excruciating pain of the surgery, sometimes without the ability to indicate their awareness. For a compelling and notorious account of a woman who endured the surgical removal of her eye while fully conscious (but paralyzed), see Operation was Wake-Up Call, CNN.com (Oct. 25, 2005), available at http://www.cnn.com /2005/ HEALTH/10/25/profile.anesthesia.advocate/index.html. The subject of the article, Carol Weihrer, has testified in several lethal injection cases nationwide about her experience. 6. Associated Press, Dog Survives Lethal Injection, is Nearly Burned Alive, Salt Lake Tribune, July 22, 2006, available at http://www.sltrib.com/utah/ci_4082368. 7. Brief of Amici Curiae Drs. Kevin Concannon, Dennis Geiser, and Glenn Pettifer Supporting Petitioner at 15 n.3, Hill v. McDonough, 126 S.Ct. 2096 (2006) (citing statutes). 8. See, e.g., Taylor v. Crawford et al., Case No. 05-4173-CV-S-FJG (W.D. Mo. June 26, 2006), at 6 (“There was no dispute that if an inmate is not sufficiently anesthetized when the potassium chloride is administered, it will cause excruciating pain as it is administered through the inmate’s veins.”). 9. Such torture violates the Eighth Amendment. See Gregg v. Georgia, 428 U.S. 153, 173 (1976) (prohibiting “[e]xecutions that involve the unnecessary and wanton infliction of pain”). 10. See Taylor v. Crawford et al., Case No. 05-4173-CV-S-FJG (W.D. Mo.) (Redacted testimony of Dr. John Doe #1), June 5, 2006, available at http:// www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injection%20Documents/Missouri/Taylor/June%202006%20Hearing/1983%20PR%20John%20Doe%20I%20Deposition%20Tr%20Redacted.pdf. 11. Id. at 63-65. 12. Id. at 9-10. 13. Id. at 41-43. 14. Id. at 31. 15. Editorial, Aggravating Circumstances, St. Louis Post-Dispatch, June 29, 2006, at C8. 16. Taylor v. Crawford et al., Case No. 05-4173-CV-S-FJG (W.D. Mo. July 25, 2006), at 1. The State got no response to the letters it sent out seeking assistance in executing Missouri inmates. See Exhibit B to State’s Submission of Proposed Execution Protocol, Taylor v. Crawford et al., Case No. 05-4173-CV-S-FJG (W.D. Mo. July 25, 2006) (affidavit of Terry Moore), available at http://www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injection%20Documents/Missouri/Taylor/July%2014%20Filings/1983%20PR%20Doc%20No%20198%20Exh%20B%20Affidavit%20of%20Terry%20Moore%20c%20Sample%20Ltr.pdf. As of this writing, the case is pending on the state’s appeal to the Eighth Circuit. 17. Jeremy Kohler, Behind the Mask of the Missouri Execution Doctor, St. Louis Post-Dispatch, July 30, 2006, at A1. 18. Id. 19. The Director of the Missouri Department of Corrections, Larry Crawford, testified at the evidentiary hearing in Taylor that he had confidence in Dr. Doerhoff’s competence and training and that as far as he was concerned, the doctor would continue to participate in Missouri’s executions. See Taylor v. Crawford et al., Case No. 05-4173-CV-S-FJG (W.D. Mo. June 13, 2006) (testimony of Larry Crawford), at 388-99, available at http://www.law.berkeley.edu/ clinics/dpclinic/Lethal%20Injection%20Documents/Missouri/Taylor/June%202006%20Hearing/TAYLOR3.TXT. 20. Brief of Petitioner at 9-10, Nelson v. Campbell, 541 U.S. 637 (2004). 21. Nelson v. Campbell, 541 U.S. 637 (2004). 22. Taylor v. Crawford et al., Case No. 05-4173-CV-S-FJG (W.D. Mo. January 31, 2006), at 5. 23. Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting from denial of certiorari). 24. Brown v. Beck, 445 F.3d 752, 754-56 (4th Cir. 2006) (Michael, J., dissenting). 25. Adam Liptak, State Proposes Using Device, Not Doctors, in Execution, N.Y. Times, April 13, 2006. 26. Morales v. Hickman et al., No. C-06-219 JF, (N.D. Cal. Feb. 14, 2006), at 14. 27. Stacy Finz, Bob Egelko, & Kevin Fagan, Killer’s Execution Rescheduled, S.F. CHRON., Feb. 21, 2006, at http://sfgate.com/cgi-bin/article.cgi? f=/c/a/2006/02/21/MNG14HC1HG16.DTL

National Association of Criminal Defense Lawyers (NACDL) 1150 18th St., NW, Suite 950, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org

Missouri letter about the use of Dr Doe

The AG letter about the Missouri use of Dr Doe

http://www.oranous.com/florida/Baze/55.pdf

The Missouri order about Dr Doe

http://www.oranous.com/florida/MarkSchwab/orderMissouri.htm

http://www.oranous.com/florida/MarkSchwab/27.pdf

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR )

)

Plaintiff, )

vs. ) No. 05-4173-CV-C-FJG

)

LARRY CRAWFORD, et al., )

)

Defendants. )

ORDER

On August 9, 2006, the Eighth Circuit remanded the above captioned case to this

Court. In that Order the Eighth Circuit stated, “[s]ince Crawford has now proposed the

revised protocol for use in the execution of Taylor’s death sentence, the court remands

jurisdiction of this dispute to the district court for consideration of this newly propounded

protocol and all other issues now framed by the parties’ pleadings and notices of

appeal.” (August 9, 2006 Order, p. 3). The Court has reviewed the protocol proposed

by the State, as well as the plaintiff’s objections and the state’s reply to those

objections.

I. Revised Protocol

First, this Court’s June 26, 2006 Order (Doc. # 195) was premised on the stated

intent of the State to continue using the three drug protocol. However, the Court found

that the lack of a written protocol for the use of these three drugs, plus an inconsistent

and arbitrary application of these drugs subjected condemned inmates to an

unreasonable risk of cruel and unusual punishment. The Eighth Amendment provides

that “cruel and unusual punishment” shall not be inflicted. It prohibits punishments that

are “incompatible with ‘the evolving standards of decency that mark the progress of a

maturing society.’” Estelle v. Gamble 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d

251 (1976), (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630

Case 2:05-cv-04173-FJG Document 213 Filed 09/12/2006 Page 1 of 4

2

(1958)). As to executions, it prohibits “the unnecessary and wanton infliction of pain” as

well as methods involving torture or a lingering death. See Gregg v. Georgia, 428 U.S.

153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976).

While the State’s revised protocol is an improvement over the previous

procedures used by John Doe No. 1, it falls short of providing the critical Constitutional

protections required. It was never the intention of this Court to prevent the State of

Missouri from executing its death row inmates. Rather, the Court sought only to ensure

that the State was meeting Constitutional standards. Those standards can be achieved

in various ways. However, certain protocols suggested by the State fall short of those

standards. If the State wants to continue using the three drug method of lethal injection,

its proposal shall be modified as follows:

1. First, John Doe No. 1 shall not participate in any manner, at any level, in the

State of Missouri’s lethal injection process.

2. Second, while a board certified anesthesiologist is preferred, the Court hereby

modifies its previous order (Doc. # 195, p. 14) to permit a physician with training in the

application and administration of anesthesia to either mix the chemicals or to oversee

the mixing of the chemicals for lethal injections.

3. Anesthetic Depth - The States’ proposal is rejected in favor of that proposed

by the Court. As noted in the Court’s previous order, the State may have to

purchase additional equipment in order to adequately monitor anesthetic depth. The

method of monitoring anesthetic depth shall be determined after the State consults with

the physician who is chosen to assist in the lethal injection process. The State has

agreed to reposition the gurney on which the inmate is positioned, so that the inmate’s

face will be directly visible to the medical personnel.

4. Contingency Plan - The State’s proposed contingency plan is acceptable.

5. Auditing Process - The “Sequence of Chemicals” form that verifies that the

Case 2:05-cv-04173-FJG Document 213 Filed 09/12/2006 Page 2 of 4

3

drugs were given in the order specified in the protocol shall be signed by each staff

member taking part in the protocol as soon as the inmate has been declared dead. The

physician in charge of the lethal injection procedure will also complete and sign the

chemical log.

6. Any deviations from this written protocol shall be a matter of written record

submitted to the appropriate state officials and subject to Court review. Said review

may result in further modifications of the approved protocol.

7. Obtaining Use of a Board Certified Anesthesiologist - this provision has been

modified to allow a physician trained in the administration and application of anesthetic

drugs to be involved. The State’s proposed use of “medical personnel” is rejected to the

extent they propose the use of paramedics and/or emergency medical technicians.

However, the supervising physician previously referred to may employ medical

personnel whom he or she believes are necessary to assist the physician.

8. The State shall submit a revised protocol to the Court for review and approval

on or before October 27, 2006. The State shall select a physician who is in good

standing with their State’s licensing board. The physician selected shall not have any

disciplinary action taken against them by their State’s licensing authority.

II. Motion to Withdraw

Also pending before the Court is a Motion to Withdraw and Motion for

Appointment of Successor Counsel. This motion was filed in the Eighth Circuit, but was

remanded to this Court on August 9, 2006. Mr. Simon moves to withdraw as counsel

for plaintiff because he has accepted a position with the Missouri State Public Defender

System. Co-counsel in plaintiff’s habeas corpus and executive clemency

representation, Mark Thornhill, will continue representing plaintiff in his clemency

proceedings and Jenner & Block, LLP will continue to represent plaintiff in his lethal

injection litigation. Plaintiff has filed an affidavit requesting that the Court appoint C.

Case 2:05-cv-04173-FJG Document 213 Filed 09/12/2006 Page 3 of 4

4

John Pleban, to succeed Mr. Simon in the habeas corpus and executive clemency

litigation. As plaintiff has adequate counsel which are continuing to represent him, the

Court finds it unnecessary to appoint replacement counsel. Accordingly, Mr. Simon’s

Motion to Withdraw is hereby GRANTED and the Motion to Appoint Replacement

Counsel is hereby DENIED.

Date: September 12, 2006 S/ FERNANDO J. GAITAN, JR.

Kansas City, Missouri Fernando J. Gaitan, Jr.

United States District Judge

Case 2:05-cv-04173-FJG Document 213 Filed 09/12/2006 Page 4 of 4

Death Penalty Moratorium Backed by Majority at UN

By Bill Varner

Nov. 15 (Bloomberg) -- A majority of governments in the United Nations General Assembly voted today to support a global moratorium on the death penalty, over the objections of the U.S., China, Iran and Sudan.

The non-binding resolution, adopted by a vote of 99 members in favor, 52 against and 33 abstaining, asks all governments in the world body to "establish a moratorium on executions with a view to abolishing the death penalty.'' The measure says the death penalty "undermines human dignity'' and that there is no conclusive evidence of its deterrent value.

"It is important to recognize that international law does not prohibit capital punishment,'' U.S. envoy Robert Hagen said after the vote. The U.S. urges countries that use the death penalty to "do so in conformity with their international human rights obligations and to ensure it is not applied in an extrajudicial, summary or arbitrary manner,'' Hagen said.

The vote came amid a growing debate on the death penalty in the U.S., where 1,099 executions have taken place since 1977. The Supreme Court has brought a virtual halt to executions by lethal injection, by far the most widely used method in the U.S., while considering whether it violates constitutional prohibitions against cruel and unusual punishment.

New Jersey Bill

New Jersey may become the first state to enact legislation banning the death penalty when the state's Assembly votes on a bill next month. The death penalty is sanctioned by 37 of 50 U.S. states; 13 don't use it.

Argentina, Australia, Brazil, Britain, France, Germany, Israel, Italy and Spain were among the nations that voted for the resolution.

"A United Nations resolution against the death penalty will prove that human beings today are better than they were yesterday, also in moral terms,'' Italian Prime Minister Romano Prodi told the General Assembly on Sept. 25 as world leaders met in New York. "If genuine politics means showing foresight, we shall perform a great political act through adoption of this resolution.''

The vote was a "historic resolution and major step towards the abolition of the death penalty worldwide,'' London-based Amnesty International said in an e-mailed statement. "Although the resolution is not legally binding on states, it carries considerable moral and political weight, as it was adopted by the UN's principal organ in which all UN members participate.''

Two previous attempts at the UN to urge the abolition of the death penalty failed to win a majority in the 192-member General Assembly. The resolution adopted today gained wider support because it called only for a suspension.

China, Egypt, Iraq, Iran, Japan, Saudi Arabia and Sudan are among nations that have carried out executions since 2000.

To contact the reporter on this story: Bill Varner at the United Nations at wvarner@bloomberg.net

Last Updated: November 15, 2007 17:42 EST