Thursday, 25 January 2007

Is lethal injection humane?


North Carolina took the power to execute inmates from local governments in 1910. Methods have included electrocution, gas and, since 1998, only lethal injection.

In 1972, the U.S. Supreme Court outlawed the death penalty when juries had unbridled discretion to impose it. The N.C. Supreme Court then declared it mandatory for some crimes -- a decision overturned in 1976. Sentences were vacated for 120 inmates. Many were retried, and most were sentenced to life in prison. A 1977 state law restored the death penalty for first-degree murder.

By Matthew Eisley
Editor's note: This report originally ran in the Q section on April 4, 2004.

Is lethal injection humane?

Lethal injection became the favored way to execute criminals in the United States because it looks peaceful and clinical -- and, if done right, it's painless.

Partly because lethal injection is considered so humane, North Carolina made it the state's only execution method in 1998. Lethal injection also avoids exposing prison workers to poisonous vapors as the gas chamber had.

Now, doctors and death-penalty critics warn that lethal injection can deliver a hidden torture worse than other ways of putting killers to death, such as hanging, electrocution, firing squad or lethal gas. They claim inmates can die awake and in pain but unable to alert witnesses because they are paralyzed.

Lawsuits challenging the constitutionality of lethal injection are the latest turn in the death-penalty debate. Suits have been filed not only in North Carolina but also in states such as South Carolina, Virginia, Tennessee, Georgia, Louisiana, Texas, Ohio, Pennsylvania and New York. Lawyers for death row inmates argue that what might seem to be the most civilized form of execution actually is cruel and unusual punishment -- and therefore forbidden by the U.S. Constitution.

An appeals court in New Jersey recently stopped lethal injections there on the grounds that insufficient medical knowledge supports the method.

And the U.S. Supreme Court heard arguments Monday in an Alabama case raising a related question: Is lethal injection humane when prison personnel have to cut into an inmate to find a vein for injecting the drugs? Sometimes that is necessary for obese inmates or for drug addicts. A victory by the Alabama inmate could invite more challenges to lethal injection, which 37 states, the federal government and the military use. A ruling is expected by June.

"Until recently, there was no incentive for states to review what they're doing," said Fordham University law professor Deborah Denno, who has studied execution methods. "An awful lot more attention is going to be paid to how we execute people. I think states are going to have to make changes."

First-degree murder is punishable by death in North Carolina. Four women and 187 men are on death row at Raleigh's Central Prison.

North Carolina's way

Like most states, North Carolina uses a trio of drugs: the anesthetic sodium pentothal to put the inmate to sleep, potassium chloride to stop the heart and pancuronium bromide to paralyze and suffocate the prisoner. The drugs are administered one after another fairly quickly.

Critics of the method say the anesthetic might not put the inmate fully to sleep or could wear off too soon, causing the inmate to die in agony, terrified and aware he's dying. The paralyzing drug prevents the inmate from so much as frowning or lifting an eyelid -- so it could hide excruciating pain and terror caused by the suffocation and the drug- induced heart attack, critics say.

If the paralyzer weren't used, doctors say, there would be little question as to whether the anesthesia was working because the inmate could express pain.

For similar reasons, veterinarians aren't supposed to use paralyzers to euthanize animals. And they're discouraged from using sodium pentothal as an anesthetic because it can wear off.

A further concern is that nonmedical prison personnel must administer the lethal chemicals because doctors and nurses aren't supposed to help kill people.

Doctors disagree

In a pending lawsuit filed by North Carolina death row inmate George Franklin Page, Dr. Philip Boysen, chairman of anesthesiology at UNC-Chapel Hill's medical school, said in an affidavit that North Carolina's lethal-injection procedure invites disaster.
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North Carolina took the power to execute inmates from local governments in 1910. Methods have included electrocution, gas and, since 1998, only lethal injection.

In 1972, the U.S. Supreme Court outlawed the death penalty when juries had unbridled discretion to impose it. The N.C. Supreme Court then declared it mandatory for some crimes -- a decision overturned in 1976. Sentences were vacated for 120 inmates. Many were retried, and most were sentenced to life in prison. A 1977 state law restored the death penalty for first-degree murder.

Thu, 25 Jan 2007 18:11:08 "It is my professional opinion to a reasonable degree of medical certainty that the protocol for lethal injection currently employed in North Carolina is generally, and as intended for Mr. Page in particular, inhumane," Boysen testified. "Although it may result in the intended death of the prisoner, the likelihood of pain, suffering and a terrible death is extremely high."

But an anesthesiology professor consulted by the state concluded just the opposite.

The initial anesthetic injection would put 99.9999 percent of the population to sleep and by itself would kill most people, Dr. Mark Dershwitz of the University of Massachusetts medical school said in an affidavit in Page's case.

"Therefore, it is my opinion to a reasonable degree of medical certainty that there is an exceedingly small risk that a condemned inmate under these circumstances would experience any pain associated with the infusion of lethal doses of pancuronium bromide and potassium chloride," he said.

The nightmare scenario is impossible to prove because the inmates are dead and can't report what they experienced. But doctors and patients know from surgical experience that anesthetics don't always work as intended.

Carol Weihrer, a former surgery patient in Reston, Va., founded the Anesthesia Awareness Campaign after suffering for hours through a painful operation in which the anesthesia did not work. As Weihrer's eye was removed, she felt, heard and sensed all that happened. She could think clearly but could not move a muscle because she had been given a paralyzer. Her doctors and nurses thought she was asleep.

"It burnt like the fires of hell," she wrote in November in an affidavit in a Texas death-penalty case. "It was the most terrifying, torturous experience you can imagine. The experience was worse than death."

Despite such failures on operating tables, prison officials and some doctors say the high dosages of drugs used in executions are almost certain to guarantee inmates a quick and painless death.

State authorities say there is no evidence that any inmates have suffered during their executions, much less been subjected to cruel and unusual punishment.

"Of the 18 executions at which I have been present, I have observed nothing and am aware of nothing that indicates any of those being executed were suffering physically," Marvin Polk, warden of Central Prison, wrote in a January affidavit responding to a lawsuit by four North Carolina inmates challenging lethal injection.

"There is no credible argument that lethal injection is cruel or unusual punishment," Steven Arbogast, a special deputy attorney general, wrote in a court filing.

As part of Page's lawsuit, lawyers for two recently executed inmates said they believe they saw their clients suffering while dying. One of the lawyers, Heather Wells of Wilmington, said the October execution of her client Eddie Hartman was awful.

"Throughout the execution, Eddie's eyes were partly open while his body relentlessly convulsed and contorted," she wrote in a January affidavit. "Eddie was clearly suffering."

Witnesses can't be sure of what they are seeing with lethal injection, said Dr. Mark Heath, an anesthesiology professor at Columbia University in New York who trained at UNC-Chapel Hill.

"There is just no way of knowing whether they were awake or asleep," he said. "It is hard for people to accept that a person can be wide awake and in agony and yet appear utterly serene. But there have been quite a few lawsuits from patients who experienced intraoperative awareness and conscious paralysis. It is a very real problem."
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Because of that, Heath said, "lethal injection clearly can be very cruel."

Death-penalty critics say the state should not use such an uncertain procedure to carry out its most serious act.

"If we're using lethal injection because it's humane, we have an obligation to determine whether it's humane," said Duke University law professor Jim Coleman, who opposes the death penalty. "It's a question of what's the correct combination of drugs to use and in what amounts. That's a simple issue. We ought to get experts who don't have an ax to grind to fix it."

Others dismiss the controversy.

"This is just another futile attempt to stop the death penalty," said state Rep. Rick Eddins, a Raleigh Republican whose uncle was murdered in 1988. "The cruel punishment is when these cold-blooded killers murdered someone to put themselves in this situation. They have earned their way onto death row. This is a painless way to die, unlike what they did to their victims."

Some calm; others not

North Carolina, like other states, seems to have mimicked what is called "the Texas cocktail," a standard trio of lethal- injection drugs developed by Oklahoma in 1977 and first used by Texas in 1982. But the order and number of injections administered in North Carolina are unique.

Inmates get a shot of the anesthetic, then the heart-stopper, then the paralyzer, then more of the heart-stopper, and finally another dose of anesthetic. Other states give the anesthetic, then the paralyzer, then the heart-stopper. It usually takes less than a minute for North Carolina inmates to lose consciousness and then 10 to 15 minutes for their hearts to stop. They're pronounced dead five minutes later.

Many inmates seem serene throughout. Others, anything but.

During Willie Fisher's 2001 execution, for example -- which a News & Observer reporter witnessed -- he appeared unconscious, but not serene.

As an executioner injected the anesthetic, Fisher began counting backward from 100. He got to 28, yawned, and seemed to sleep.

A couple of minutes later, as the other drugs took effect, Fisher began gasping and then convulsing as his body struggled to keep breathing. For three minutes his mouth gaped, his chest heaved against gurney restraints, his head rocked back and his throat bulged. Eight minutes after Fisher's execution began, he finally lay still. He was pronounced dead 21 minutes after his first injection.

Fisher's death is one of those cited in Page's lawsuit.

Several alternatives

Some experts say that giving the heart-stopper before the paralyzer could speed the inmate's death and that giving two large doses of the anesthetic should reduce the chance the inmate will awaken as he's dying.

"It's extremely likely that they would die before feeling anything," said Dr. John Booth, a Duke University assistant professor of anesthesiology.

Critics contend that the state can't be sure because it hasn't asked doctors what drug combinations, amounts and sequence would be effective and humane.

Denno noted that states only recently began examining their procedures in response to inmate lawsuits. "People just assumed that this is the way to do it," she said. "They are flying blind."

The advice of medical experts is this: Switch to a longer-lasting anesthetic such as pentobarbital and quit using the paralyzer. The duo of the anesthetic and the heart-stopping potassium chloride would do the job, without running the risk of masking the dying inmate's pain.

Whether authorities would consider, without a court order, using other drugs isn't clear. No one has proposed it for the General Assembly's upcoming session.

In theory, lawmakers have another option: changing to a different method of execution.

If the humaneness of each method is defined by how quickly it causes death, Denno said, the surprising leader is ... firing squad.

"People don't like it because it seems grisly, but death is instantaneous," she said. "The method that repels the public the most seems to be the most humane. There are lots of ironies in this."
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