Doctors and Death and Doctors Death

I am taking a seminar in Advanced Criminal Law, which is focused on capital punishment this term. It's a small class. We meet once a week, early in the mornings till lunchtime, have breakfast before class. We don't actually have any textbooks, but we do have a heck of a lot of reading in terms of articles, and we write reflection articles every week as well. The first week we wound up listening to the oral argument presented in front of the Supreme Court in Baze v.Reese, which challenged the current three-drug lethal injection procedure in Kentucky. In addition, we read two articles, one which consisted of our professor's research on the use of lethal injection and disclosure of protocols across the nation and one on a doctor's position about participation of medical practitioners and executions, as well as reactions to his article. Today we had two doctors speak to weigh in on the medical aspect of the most popular execution method in the country. The main speaker was Dr. Mark Heath.

After hearing all that information and processing it the best way I could, I realized how ridiculously oversimplified the current debate on death penalty is in this country alone. We talk about broad overarching issues without knowing much about them at all, and we can't even discuss the narrow but no less important issues having no background in that at all. And I guess the same can be said about every single public policy issue at hand, and perhaps any other issue. I feel ashamed for knowing so little when there is so much to learn. But getting back to death penalty, lethal injection is indeed used overwhelmingly in the vast majority of states with death penalty, for a whole host of reasons I don't find entirely satisfying.

The Facts of the Procedure
The procedure as we know it involves three drugs - pentathol (sodium thiopental), pancuronium, and potassium. After the IV is inserted, pentathol is supplied. Pentathol is a sedative widely used for general anaesthesia during surgeries. A low dose of it provides mild sensation, sometimes used to get "high". A higher dose provides transient unconsciousness, whereas a high dose provides long-lasting unconsciousness. The problem with this drug is that its duration can be unpredictable and patients occasionally wake up during surgery (or execution, for that matter). This stage of the execution, as well as the insertion of IV lines (a very complicated matter on its own, because different people have different spots where it's easier or hard to insert the IV) is considered medical procedure because they are used for therepeutic effect.

The next stage involves giving the prisoner pancuronium, which paralyzes only the voluntary muscles and can lead to suffocation if used for a prolonged time. It is also frequently used during surgeries to suppress movement and allow for a steady field. The problem with that is that gives the appearance of tranquility, whereas the prisoner or the patient may actually be awake and experiencing pain, but unable to communicate it due to paralysis. Doctors usually look for tearing as a sign that the patient is indeed conscious despite appearances. Pancuronium can kill, but only after a very long period of time. The final drug is the one that is actually the one that is supposed to cause the cardiac arrest, potassium. Potassium activates neurofibers and circulates through the heart. It is occasionally used during cardiac surgeries in order to make the heart still and easy to operate on. The activation of the neurofibers can be incredibly painful if the patient is not properly anaestesized. Furthermore, potassium causes involuntary jerking which is not suppressed in patients, but which the states prefer to suppress with the cosmetic paralyzing effects of pancuronium, to preserve the dignity of the prisoner and the eyewitness. Neither the pancuronium nor potassium stages of the execution are considered medical procedures, because they are not therapeutic.

What Can Go Wrong

Recently, the procedure has been criticized due to the several scandalously botched executions which have made the front lines and drew attention to the actual way the states have performed the procedure. There are numerous ways in which things can go wrong. They start with inserting IV lines, a difficult procedure which really needs an experienced medical practitioner in order to choose the best vein for the IV, since some places are naturally "easier" and "quicker" than others, and of course, there is a wide spectrum of individual variations. However, many states have not been hiring such medical practitioners, in part because various medical associations do not want doctors, nurses, and other experts to be involved in death-inducing procedures, including capital punishment, and in part because the protocols have not been drafted to mandate the presence of such individuals even in the instances when volunteers can be found (18% of doctors would agree to participate, despite the "ban" of the ethical guidelines, which aren't the law, by the way).

Dr. Heath showed us extremely graphic photographs of some of the executions where inexperienced individuals have attempted to insert IV lines in numerous places, sometimes in as many as 20 attempts, and even have attempted "cutdowns" (cutting of skin to reveal the vain"). Cutdowns apparently require surgical expertise, and even most physicians are not trained enough to perform them with ease. I can assure you that those pictures were not pretty. In fact, the sight of the executed bodies was very disturbing and sobering, even for such a strong proponent of the death penalty as myself. In part, that is because seeing an actual dead body on a photograph is very different from seeing a corpse in a movie. In part, that was because of the prisoners themselves. Many of them were grotesquely obese and unkempt, and all of them looked like... there was something wrong with them. I can't exactly explaining. And aside from the gory sight of IV wounds themselves, there was also the awareness of a purposeful taking of life, and despite my full support for the idea of executing the most heinous of murderers, when you actually see the procedure you cannot have a cavalier attitude about. Someone in the class almost threw up, and even I felt a little uncomfortable. I also felt sorry for the executioners. I respect them for performing their civic duty, but it must be extremely difficult to put someone to death even for a good cause and for all the right reason. At the same time, I felt the awe of seeing justice being done, of understanding that atrocious crimes are being followed by a harsh and just punishment, and again, such an acknowledgment is extremely sobering, regardless of where you stand on the issue.

The problems with the procedure are unfortunately not limited to the issues with accessing the prisoner's veins. The second serious issue is the failure to deliver proper anaesthesia either for lack of medical background and understanding how much is required, for failure to administer any, failure to dilute the anaesthetic properly or for legal reasons related to the procedure. The way it's done is the IV with the solution is placed in a different room where the witnesses and the executioners are seated, and the solution travels across the lines to the prisoner. The lines sometimes rupture and leak or the IV needle weakens and falls out, and the prisoner never receives the proper doze.

Consequently the prisoners can wake up as the rest of the drugs are being administered but will not be able to communicate the potassium-induced pain because they are paralyzed.

Leakage can occur, with the solution traveling back up into the saline bag instead of towards the prisoner. Another medical problem is infiltration, which means that the drug doesn't circulate through blood directly but instead infiltrates layers of tissues, burning the skin, and circulating through the body much slower than if it had gotten in properly.

Other problematic issues include untrained personnel, which botches the procedure, people with unethical backgrounds who volunteer as executioners, and even "good" executioners suffering psychological problems due to the traumatic nature of their work.

Legal Issues

Quite recently, medical practitioners raised the issue of the ethical problem of medicalizing the death penalty. Many of them believe that doctors have no business participating in executions, not only because that can turn off their patients, but also because that would go against their Hippocratic oath of causing no harm to human beings. Some are against the death penalty altogether, but many of these advocates believe that without a properly trained medical personnel such a procedure will have an unacceptedly high risk of being inhumane and torturously painful. Therefore, they believe, the lawyers have painted themselves into a corner, but the doctors should not bail them out.

The second and separate issue is that of ideological opponents of death penalty who have been trying to undermine it by challenging this very mainstream procedure. They have suggested alternative methods of executing by lethal injection, including a single doze of a barbiturate to avoid the problem of a suffering but paralyzed prisoner. The Supreme Court Justices have shown disfavor with the idea of relitigating each new method of execution time after time, however.

The elephant in the room, is, of course, the Eighth Amendment which forbids cruel and unusual punishment. However, the case law related to that issue is very slim, so there's no clear doctrine or bright line rules for what constitutes "cruel and unusual". Keeping in mind Justice Scalia's argument that nowhere in the Constitution does it say that the punishment has to be the least painful possible and the impossibility of imposing a death sentence which would not be unpleasant in any way, one should, of course strive to avoid unnecessary and torturous cruelty that would make the sentence into a sadistic exercise rather than a somber administration of justice. That balance is hard to strike in a way that would reconcile the majority of people, but I am sure that our Justices are wise enough to do that, should they so choose.

Finally, a big problem with these cases is the secrecy of the states which have experienced problems with protocols or repeatedly botched executions. Many of them seal or destroy evidence so it's very difficult to analyze the full scope of the problem, according to Dr. Heath. Furthermore, Departments of Corrections have shown unwillingness to impose any kind of serious legal change.

Possible Solutions

Aside from the fact that there is actually probably enough ethical medical personnel to "hire" for the executions, another idea would be to have the doctors who are unwilling to participate personally train special personnel specifically for the role of carrying out the executions, in such a way that they would come no less prepared for that specific role, but without the Hippocratic Oath hanging over them. Some doctors may not be willing to go even that far, due to their personal opposition to death penalty, but others may concede that the lesser of two evils would be to have someone who can provide a reasonable and human participation in the execution rather than to continue executing prisoners haphazardly.

Another idea is to change the form of executions altogether. I personally was never in favor of lethal injection as that form of execution reminds me of animal euthanasia and I can't really associate it with a just and dignified procedure of execution. Frankly, it's just creepy. I think that the firing squad would probably a much better solution. There would be no need to involve the doctors, the medical problems would be eliminated, and the death would be at once sufficiently quick and at the same time awe-inspiring in form.

As a strong proponent of death penalty I care very much that it should be carried out in the "right" way to stave off the opponents. Therefore, I believe that current procedures should be as transparent as is proper, that problems should be analyzed and resolved, that there should be someone present in the room with the prisoner being executed to make sure nothing goes wrong, and that laws should be changed to make the procedure truly effective and yes, respected. I am appalled by the idea that someone can think of capital punishment as a mockery. Needless to say, the fewer botched executions and other problems, the more respected it will be by those who do not oppose the idea in principle, and perhaps it may have a greater deterrent effect. At the same time, I do not think that punishment should be reduced to the prisoner's rights and making the experience as pleasant for the prisoners as possible. I think it is important to keep in mind that these are the people who have committed the most heinous of crimes and deserve a severe punishment. It should not be unduly cruel and perverse, but it should not be something that the prisoners would take lightly, and in that I am with Justice Scalia.

I hope I have more or less thoroughly summarized some of the issues I have come across during the last week, and am looking forward to your comments and questions.

Somber,
Irina