- BIOETHICS FORUM ESSAY
With the Drug Shortage, Time to Reconsider Lethal Injection
The United States remains the only Western democracy that practices capital punishment as a matter of federal policy. Since 1976, a total of 1,238 individuals have been put to death by the legal system in this country. Thirty-five states currently practice capital punishment, all of which rely on lethal injection as the primary means by which to execute criminals condemned to death.
All but one state (Ohio) uses a three-drug cocktail: sodium thiopental to render the condemned unconscious; pancuronium bromide to paralyze the muscles and body, including the lungs; and a lethal dose of potassium chloride to stop the heart. Despite debates about the efficacy of this method of execution, in April 2008 the Supreme Court ruled 7-2 that the three-drug cocktail used by most states did not violate the eighth amendment prohibition of cruel and unusual punishment.
Discussions about the use of lethal injection have recently reentered national discourse as sources of sodium thiopental – a drug once commonly used for general anesthesia – have begun to evaporate. Hospira, an Illinois-based pharmaceutical company, which is the sole producer of the anesthetic in this country, halted production of the drug in the summer of 2009 with plans to move manufacturing overseas to Italy, a country where the capital punishment is outlawed. Unable to assure Italian officials that the drug would not be used for capital punishment purposes and facing possible liabilities, Hospira withdrew its plans for the production facility in Italy and announced last week that it would no longer produce sodium thiopental in any capacity.
This announcement has left states scrambling to figure out how they are going to execute the 3,261 inmates currently on death row. Foreseeing a shortage last fall, California and Arizona obtained shipments from a British company, which has since followed Italy in refusing to allow exports of drugs for use in capital punishment, leaving no readily available source for sodium thiopental. Most states report having no supply of the drug, or one that is set to expire in the coming months.
Oklahoma has taken the lead in seeking an alternative to sodium thiopental in the three-drug cocktail, having executed the first American using pentobarbital in December 2010. Ohio has announced plans to follow suit, with other states likely to do the same.
Although this may seem like a viable alternative, many are hesitant to substitute the drug so quickly given its use in veterinary medicine and physician-assisted death in Oregon and Washington. The shared use of pentobarbital in animal euthanasia could make the practice of lethal injection seem even more dehumanizing than it already is; while its use in Oregon and Washington may create problematic associations with a controversial practice that already calls into question the limits and responsibilities of modern medicine. Others allege that not enough tests have been conducted to understand pentobarbital’s effectiveness in preventing pain during executions. The drug manufacturer, Lundbeck, meanwhile opposes its drug being used for capital punishment.
As states struggle with practical questions of how and where to get supplies of drugs used for lethal injection, perhaps we should take a step back and ask more fundamental questions about the nature of capital punishment and lethal injection. Casting aside relevant ethical arguments against the practice of capital punishment in this country, lethal injection is supposed to represent the most humane and ethically unproblematic way to execute an individual. But do current practices meet a reasonable standard?
A 2005 study in The Lancet which examined capital punishment practices in Arizona, South Carolina, North Carolina, and Georgia, found that over three-quarters of executed prisoners had blood concentrations of thiopental lower than that required for surgery, and over two-fifths had concentrations consistent with awareness. Without adequate anesthesia, they might experience a feeling of suffocation or intense pain as the potassium chloride is injected into their bodies.
Unlike its medical applications, anesthesia as used in executions has not been subjected to clinical trials and government regulation. Furthermore, those called upon to execute prisoners often lack formal medical training or the skills necessary to gauge whether the condemned are suffering. Despite, or perhaps because of, a lack of standardization or supervision in the practice of lethal injection, the procedure is not subject to medical liability. Criminals and their family members have little recourse when a lethal injection is botched. Only once has a failed lethal injection been rescheduled, or postponed indefinitely, by court injunction.
Given the inconsistencies in the administration of lethal injection, those condemned to death could suffer unreasonably. If true, lethal injection, as currently practiced, might constitute cruel and unusual treatment as articulated in seminal human rights conventions and the eighth amendment to the Constitution. Bioethicists go to great lengths to ensure dignity at the end of life for all individuals. Why should this right not extend to those who have been condemned to capital punishment?
If the practice of capital punishment can be justified on moral grounds, then the logical solution, to minimize pain and suffering for the condemned, may be the participation of health providers, who can monitor and assess the health of the prisoner in the process. This of course raises a host of issues, worth mentioning but not exploring in depth here: Would the physician’s participation constitute a patient-physician relationship, requiring all obligations therein? How would physicians reconcile their duties as healers and obedience to the Hippocratic Oath with the intentional killing of an individual? Should physicians be able to assess inmates to determine whether they are fit for execution, but not take part in the actual process? Can they pronounce death? The American Medical Association states that a physician “should not be a participant in a legally authorized execution,” but such a statement lacks real enforceability.
While discussions about the ethics and efficacy of lethal injection are bound to continue, some interesting issues also arise regarding the role and responsibilities of companies that provide the drugs used in executions. The shortage of sodium thiopental is unlikely to end the practice of lethal injection in this country, as evidenced by the fact that Oklahoma and Ohio have already sought alternative drugs. The burdens of production and distribution may quickly shift to unsuspecting drug manufacturers. Some of these companies might be horrified to learn that their drugs are now being used, “off label,” for executions.
The FDA has ceded power to law enforcement agencies by not conducting reviews of the safety, effectiveness, and quality of imported drugs used for lethal injection. A pending lawsuit, filed on behalf of six prisoners on death row, asks that future shipments of sodium thiopental be banned and any unapproved supplies of the drug be recovered.
The FDA has also demonstrated a lack of power to prohibit drugs in this country from being used for unintended purposes, such as lethal injection. Without regulatory mechanisms to stop off-label use of anesthetics, drug companies such as Lundbeck might face a difficult moral calculus: the prospects of being complicit in the killing of others or of discontinuing production of a product that might have valuable medical applications. How are companies to decide between these two evils?
Ethical, policy, and legal debates about the continued practice of lethal injection in the criminal justice system are never going to be fully resolved. Unable to reach a consensus about the morality of the death penalty, we must find ways to more meaningfully navigate such a difficult moral issue in the public policy sphere.
If capital punishment is to continue, we must first practice it in the most humane way possible by respecting the right to a dignified death free of undue pain and suffering. Next, we should attempt to address the blurring line between the medical profession and the criminal justice system, which currently undermines its effective application. Finally, we should decide whether drug makers have the right to determine how their products are used, and if so, institute regulatory measures to protect that right.
Ross White is a research assistant at The Hastings Center.