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Let’s Stop Pretending the Death Penalty Is a Medical Procedure [Editorial]

The use of drugs to carry out capital punishment is putting bona fide medical patients at risk
lethal injection



Logan Faerber

In January the state of Ohio executed the convicted rapist and murderer Dennis McGuire. As in the other 31 U.S. states with the death penalty, Ohio used an intravenously injected drug cocktail to end the inmate's life. Yet Ohio had a problem. The state had run out of its stockpile of sodium thiopental, a once common general anesthetic and one of the key drugs in the executioner's lethal brew. Three years ago the only U.S. supplier of sodium thiopental stopped manufacturing the drug. A few labs in the European Union still make it, but the E.U. prohibits the export of any drugs if they are to be used in an execution.

Ohio's stockpile of pentobarbital, its backup drug, expired in 2009, and so the state turned to an experimental cocktail containing the sedative midazolam and the painkiller hydromorphone. But the executioner was flying blind. Execution drugs are not tested before use, and this experiment went badly. The priest who gave McGuire his last rites reported that McGuire struggled and gasped for air for 11 minutes, his strained breaths fading into small puffs that made him appear “like a fish lying along the shore puffing for that one gasp of air.” He was pronounced dead 26 minutes after the injection.

There is a simple reason why the drug cocktail was not tested before it was used: executions are not medical procedures. Indeed, the idea of testing how to most effectively kill a healthy person runs contrary to the spirit and practice of medicine. Doctors and nurses are taught to first “do no harm”; physicians are banned by professional ethics codes from participating in executions. Scientific protocols for executions cannot be established, because killing animal subjects for no reason other than to see what kills them best would clearly be unethical. Although lethal injections appear to be medical procedures, the similarities are just so much theater.

Yet even if executions are not medical, they can affect medicine. Supplies of propofol, a widely used anesthetic, came close to being choked off as a result of Missouri's plan to use the drug for executions. The state corrections department placed an order for propofol from the U.S. distributor of a German drug manufacturer. The distributor sent 20 vials of the drug in violation of its agreement with the manufacturer, a mistake that the distributor quickly caught. As the company tried in vain to get the state to return the drug, the manufacturer suspended new orders. The manufacturer feared that if the drug was used for lethal injection, E.U. regulators would ban all exports of propofol to the U.S. “Please, Please, Please HELP,” wrote a vice president at the distributor to the director of the Missouri corrections department. “This system failure—a mistake—1 carton of 20 vials—is going to affect thousands of Americans.”

This was a vast underestimate. Propofol is the most popular anesthetic in the U.S. It is used in some 50 million cases a year—everything from colonoscopies to cesareans to open-heart surgeries—and nearly 90 percent of the propofol used in the U.S. comes from the E.U. After 11 months, Missouri relented and agreed to return the drug.

Such incidents illustrate how the death penalty can harm ordinary citizens. Supporters of the death penalty counter that its potential to discourage violent crime confers a net social good. Yet no sound science supports that position. In 2012 the National Academies' research council concluded that research into any deterrent effect that the death penalty might provide is inherently flawed. Valid studies would need to compare homicide rates in the same states at the same time, but both with and without capital punishment—an impossible experiment. And it is clear that the penal system does not always get it right when meting out justice. Since 1973 the U.S. has released 144 prisoners from death row because they were found to be innocent of their crimes.

Concerns about drug shortages for executions have led some states to propose reinstituting the electric chair or the gas chamber—methods previously dismissed by the courts as cruel and unusual. In one sense, these desperate states are on to something. Strip off its clinical facade, and death by intravenous injection is no less barbarous.

This article was originally published with the title "The Myth of the Compassionate Execution."

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