HOW LETHAL INJECTION REFORM CONSTITUTES IMPERMISSIBLE RESEARCH ON PRISONERS

http://www.floridasupport.us/Baze/impermissibleresearch.htm

http://www.floridasupport.us/Baze/2008.shaw.pdf

HOW LETHAL INJECTION REFORM CONSTITUTES IMPERMISSIBLE RESEARCH ON PRISONERS

Seema Shah**

This essay exposes how recent attempts at lethal injection reform have involved unethical

and illegal research on prisoners. States are varying the doses and types of drugs used,

developing methods designed for non-medical professionals to administer medical procedures,

and gathering data or making provisions for the gathering of data to learn from executions gone

wrong. When individual prisoners are executed under these conditions, states are conducting

research on them. Conducting research or experimentation on prisoners in the process of reform

is problematic because it violates ethical frameworks and state laws.

The Supreme Court has recently taken up the challenge of elucidating the standard for

determining the constitutionality of lethal injection. If the Court suggests an approach to lethal

injection reform that is akin to some of the more thoughtful and cautious approaches other courts

have proposed, the Court’s decision may also contravene state laws or ethical precepts regarding

research with prisoners. Thus, this paper provides important limitations on the kinds of reform

that may be permissible and outlines the open questions that must be addressed before it can be

determined whether the risks and uncertainties involved in lethal injection can be remedied.

INTRODUCTION

The Supreme Court recently granted certiorari in order to elucidate a standard for

applying the Eighth Amendment’s prohibition on cruel and unusual punishment to determine the

constitutionality of execution by lethal injection.1 Before this decision, execution by lethal

injection had come to a halt in eleven states as a result of dramatic evidence of the potential

problems with its implementation.2 These problems led some courts to conclude that, as currently

practiced, the lethal injection system is broken and runs a substantial risk of involving cruel and

**Faculty, Department of Bioethics, National Institutes of Health and Contractor, Henry Jackson

Foundation for Military Medicine; J.D. Stanford Law School. I am thankful to the following individuals

for their contribution to this piece: Mark Heath, Nisha Shah, Paul Litton, Lisa McCalmont, Deborah

Denno, Harry Surden, Jonathan Rackoff, Eric Chwang, Zeke Emanuel, Colleen Denny, Rebecca Wolitz,

Govind Persad, Namrata Kotwani, Emily Abdoler, Ty Alper, and the members of the Department of

Bioethics at the National Institutes of Health. In addition, many prison officials and administrators

provided information about their policies or procedures or helped in navigating their information systems,

for which I am also grateful. Finally, the opinions expressed herein are my own. They do not represent

any position or policy of the National Institutes of Health, Public Health Service, or Department of Health

and Human Services.

1 Baze v. Rees, No. 07-5439, 2007 U.S. LEXIS 9066, at *1 (U.S. September 25, 2007).