Death by Medicine: Lethal injection and the US constitution

Mohammad Alkhateeb

Background

In 2021, Donald Trump’s final days in office were marked by the peculiar events which unfolded at the Capitol, as well as step-up of federal executions. Those last-minute executions had taken the lives of Brandon Bernard, Dustin Higgs and perhaps most controversially, Lisa Montgomery.

Little discussion was had regarding the method by which the lives of the condemned had been terminated, a method whose proponents stipulate is the most humane, or more appropriately, the seemingly least cruel manner in which the state can end a life. Yet, it is clouded by controversy and is faced by opposition from medical professionals, bodies and corporations.

The method of execution in those instances had been lethal injection. Under the Eighth Amendment of the United States Constitution[1], no person shall suffer ‘cruel and unusual punishment’, which means that the possibility of lethal injection constituting cruel and unusual punishment, is a potential gross violation of U.S constitutional law.

How does lethal injection work

To carry out an execution by lethal injection, the inmate is strapped to a gurney, then injected with three drugs. The first of those is a barbiturate anaesthetic[2] (sodium thiopental[3]), the second is a paralytic/muscle relaxant such as pancuronium bromide, which ceases all communication between the nerves and muscles, causing paralysis and asphyxiation, and the third is generally potassium chloride, designed to cause irreversible cardiac arrest. The last of the drugs is the lethal component.

From a theoretical perspective, this method could minimise pain and suffering. There are however many factors that undermine this claim to humanity. The problems may arise from several variants, most commonly incorrect dosage, wrong timing and intervals between different drugs, layman’s application, the inability to recognise signs of pain and suffering and a libertarian approach to the choice of drugs depending on the state and execution staff.

When things go wrong

There are many variants which can lead to complications that cause the condemned to be deprived of their Eighth Amendment Right, and is subjected to a punishment likely to be deemed as cruel and unusual. A 2005 study from Virginia and Florida, two states retaining the use of capital punishment, sheds light on the gruesome details of the complications that can and do arise. This study has concluded that the dose of 2-3 grams of sodium thiopental, which is used in those executions, is not guaranteed to lead to the intended loss of sensation since those administering the dose are often unskilled, and due to the duration of the execution.

Indeed, sodium thiopental is medically designed to be used in tandem with other anaesthetic agents, or as the sole agent for medical procedures that do not exceed 15 minutes. This comes in addition to what the study suggested is the extremely anxious inmates whose bodies are ‘flooded with adrenaline’, meaning that a higher dose would be required to fulfil the required level of sedation, particularly with the uncertain durations of execution, as complications or delays arise.

The study then explains that, without the adequate anaesthesia, the remaining injections of drugs would cause ‘asphyxiation, severe burning sensation, massive muscle cramping and cardiac arrest’ all whilst in a conscious state. There is little doubt that the infliction of such excruciating levels of pain constitutes a gross violation of the Eighth Amendment, as those can reasonably be seen as acts amounting to methods of torture that go beyond incidental or inevitable pain in the lead up to death. In other words, the nature and degree of pain is not necessary to achieve death.

The possibilities of extreme suffering, as stipulated by the study, are further exacerbated by the frequent use of midazolam as an anaesthetic. This has come as a result of the unavailability of sodium thiopental in some instances. The use of midazolam has caused much controversy over the years. David Waisel, Associate Professor of Anaesthesia at Harvard University Medical School, deems the drug ineffective in putting the inmate to sleep, meaning that the execution would be defined as cruel and unusual punishment, since the use of an effective anaesthetic is veritably the key and sole component capable of reducing pain.

The condemned would therefore be fully conscious and sentient, all while being subjected to the effects of the paralytic, with the inability to move or breathe, and the ensuing cardiac arrest. In such circumstances the inmate would find himself unable to vocalise pain or suffering due to paralysis. This renders it especially difficult for the executioners or witnesses to recognise any signs of such occurrences, and in turn, some may stipulate that there is little clear or conclusive evidence that amounts to an incentive for reform on the state or federal level in accordance with the Eighth amendment. Such horrors were proven to have unfolded in the executions of at least four people between 2014-2017, one of which was Kenneth Williams in Arkansas.

Where it concerns potential violations of constitutional law, the federal government has a positive duty[4], not merely passive duty, to ensure that individuals’ constitutional rights are upheld by all public bodies. In other words, it must actively ensure that constitutional rights are respected, not merely refrain from transgressing them.

The Law and Facts

The courts in the US have consistently held that executions and the methods used cannot be challenged if pain or suffering could happen by accident  or as an ‘inescapable consequence of death’,  but that it must be ‘sure or very likely to cause serious illness and needless suffering’. This means that there is a certain level of pain which the courts deem as acceptable or inevitable in the lead-up to death.

It is clear that this is not the case here. The execution of Angel Diaz had entailed a 34 minute battle prior to the pronouncement of death, these 34 minutes had seen Mr Diaz ‘wincing, shuddering, and gasping for air’. His antecubital fossa (area between the arm and forearm) were marked by 30 cm burns.

Drs Joel Zivot and Mark Edgar were tasked with separately and independently analysing autopsy reports on persons who were executed by lethal injection. Their findings included fluid-filled lungs (pulmonary edema, signs of feelings of suffocation or drowning), signs of a slow death, froth and foam in the airways (signs of conscious struggle whilst trying to breathe). In total, 200 autopsies had revealed pulmonary edema in 84% of the cases.

It is clear that the subjugation of a condemned person to the sensations of drowning, conscious asphyxiation and internal burning, particularly for prolonged periods, is a form of torture and therefore cruel and unusual. It is not necessary for such pain or suffering to be endured to achieve death, nor are these an inescapable consequence of death. The unusual nature of the executions is accentuated by the unpredictable effects felt by the condemned person depending on the circumstances of that particular execution.

Final Thoughts

It would seem that the risk is sufficiently evidenced by the instances of inmates who have suffered with conscious asphyxiation, drowning, paralysis, cardiac arrest and the burning sensation from the drugs, in addition to the physical inability to vocalise or demonstrate their sense of pain, is sufficient to be deemed as a substantial risk that is objectively intolerable. It is therefore clear that lethal injection, if not in all cases, runs a high risk of executions defined by cruel and unusual punishment, an objectively and morally intolerable violation of the US constitution.

Ultimately, lethal injection seems to be the last leg upon which stands the body that is the US retentionist movement. The practice appears humane and painless to the naked eye, and therefore offers the public a seeming escape from the otherwise horrific nature of the practice. Lethal injection, when examined closely in accordance with the extensive medical evidence and autopsies, is more than likely an unconstitutional act due to its violation of the Eighth Amendment of the US Constitution.

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[1] A Constitution is a legal text drafted as the foundational basis for all laws that govern the country. It governs the relationship between the state and the individual. It is usually a single document which outlines all the fundamental laws of the land, but in some cases, such as in the UK, the constitution is uncodified and therefore merely an amalgam of conventions, principles, and laws laid out in various statute.

[2] Barbiturate anaesthetics are ‘sedative-hypnotic medications’ which are ‘helpful for inducing anaesthesia’. A variety of barbiturates have either been discontinued or substituted with other drugs.

[3] Sodium Thiopental is barbiturate which is intended to induce general anesthesia amongt other functions. It was introduced in 1934, and has been replaced for clinical use. Its primary supplier had ceased its production on the grounds of its use in lethal injections. The drug is only authorised as the ‘sole anesthetic agent’ for brief procedures (15 minutes or less). For longer procedures, it must be accompanied by other anesthetic agents.

[4] A positive duty imposed by law is a duty, generally imposed upon the state, to actively ensure that certain rights are upheld, as opposed to a duty to passively refrain from transgressing upon certain those rights.