Anomalies: ritual and language in lethal injection regulations.

• Author: Bienen, Leigh B.
• Position: The Lethal Injection Debate: Law and Science

The state lethal injection protocols do not regulate lethal injections, but instead describe hypothetical rituals meant to reassure the reader--whomever that might be--that a controlled and orderly process, in accordance with the rule of law, will take place. The protocols are public relations documents, not legitimate legal regulations. Their status of "non-legal" documents, provisions without legal authority is evident from the fact that apparently they are not governed by state administrative procedure acts.

Epigraph: Culture, in the sense of the public, standardized values of a community, mediates the experience of individuals. It provides in advance some basic categories, a positive pattern in which ideas and values are tidily ordered. And above all, it has authority, since each is induced to assent because of the assent of others. But its public character makes its categories more rigid.... Any given system of classification must give rise to anomalies, and any given culture must confront events which seem to defy its assumptions. It [the culture] cannot ignore the anomalies which its scheme produces, except at risk of forfeiting confidence. (1)

I.

When a horse, a cow, a dog, or a grizzly bear is killed under the authority of the government, or by a private party in a planned euthanasia, the veterinarian performing the execution will follow euthanasia guidelines adopted by the American Veterinary Medical Association ("AVMA Guidelines") for the method of euthanasia to be used, including any drugs, restraints, and anesthetics required, so that the pain to the animal is minimized. (2) The AVMA Guidelines are directed to the humane death of animals:

It is our responsibility as veterinarians and human beings to ensure that if an animal's life is to be taken, it is done with the highest degree of respect, and with an emphasis on making the death as painless and distress free as possible. Euthanasia techniques [for animals] should result in rapid loss of consciousness followed by a cardiac or respiratory arrest and ultimate loss of brain function. In addition, the technique should minimize distress and anxiety experienced by the animal prior to loss of consciousness. (3) The AVMA Guidelines provide a technical description of stimuli, neural pathways, receptors, feedback, and other scientific topics and terminology before focusing on a description of the anticipated pain for the animal and its prevention. The Guidelines explain that the sensation of pain "results from nerve impulses reaching the cerebral cortex via ascending neural pathways." (4) Therefore, the Guidelines continue, to the best of our knowledge, pain is perceived only under certain circumstances:

On the basis of neurosurgical experience in humans, it is possible to separate the sensory-discriminative components from the motivational-affective components of pain. For pain to be experienced, the cerebral cortex and subcortical structures must be functional. If the cerebral cortex is not functional because of hypoxia, depression by drugs, electric shock, or concussion, pain is not experienced. Therefore, the choices of the euthanasia agent or method is less critical if it is to be used on an animal that is anesthetized or unconscious, provided that the animal does not regain consciousness prior to death. (5) "The AVMA is fully committed to the concept that, whenever it becomes necessary to kill any animal for any reason whatsoever, death should be induced as painlessly and quickly as possible." (6) The AVMA Guidelines "summarize contemporary scientific knowledge on euthanasia in animals and call attention to the lack of scientific reports assessing pain, discomfort, and distress in animals being euthanatized." (7) The AVMA only cites well-supported sources. (8) Therefore, "[m]any reports on various methods of euthanasia [that] are either anecdotal, testimonial narratives, or unsubstantiated opinions" are not included in their list. (9)

Attached to the AVMA Guidelines are four appendices categorizing types of euthanasia for animals. (10) For example, Appendix One lists barbiturates, potassium chloride in conjunction with general anesthesia, and penetrating captive bolt as agents and methods acceptable for large mammals, such as horses and swine. (11) The AMVA Guidelines state outright that euthanasia of animals by injection of a paralytic agent without anesthetic is prohibited because it causes too much pain to the animal. (12) Likewise electrocution is not recommended, because the animal may be conscious for a period of time before death. (13) The AVMA Guidelines discourage the use of contested and unapproved products for animal euthanasia. Only drugs and methods that have been studied under scientific protocols can be justified. (14) In fact, the AVMA recommends convening "a panel of scientists at least once every ten years to review all literature that scientifically evaluates methods and potential methods of euthanasia for the purpose of producing AVMA Guidelines on Euthanasia." (15)

II.

The protocols and regulations issued by states for lethal injection of humans who have been sentenced to death by a state trial court and are to be killed under the authority of the state are indirect, incomplete, replete with medical and scientific inaccuracies, and padded with irrelevant statements and descriptions of imagined events. When medical doctors are asked for their opinion on the present lethal injection methods, some doctors recommend the three-drug method be replaced with a single large injection of barbiturates. (16) Their advice has been in large part ignored. (17) Prior to abolishing the death penalty, New Jersey was the only state not to include a paralytic drug in its lethal injection protocols. (18) The state protocols for the lethal injection of humans put their emphasis on: the decoration of the rooms where the executions take place, when the curtain should be pulled, the existence and number of syringes, and other miscellaneous paraphernalia and random annotations about equipment. (19) In sharp contrast to the guidelines for animals, the preparation for lethal injections and the procedures afterwards often take more space than the instructions for the act itself. (20)

Presumably, Department of Corrections personnel, aided perhaps by other officials, such as the Attorney General of the state, write these protocols. The details are distasteful even to read. It is not surprising then that state officials have typically resisted their disclosure. (21) Only recently have these regulations been subject to public scrutiny. (22) Professor Deborah Denno of the Fordham University School of Law conducted the first and only comprehensive study in 2001 collecting written protocols of states with public protocols and obtaining information by telephone and e-mail from states with partially private or private protocols. (23)

The protocols are generally addressed not to doctors, but to others who carry out or witness the execution. Every professional medical society has forbidden doctors to participate in executions performed by the state. (24) The American Society of Anesthesiologists has put a statement on its website stating that anesthesiologists should not facilitate or participate in executions. (25) Despite these admonitions, doctors do participate openly in executions in a number of states, at least to pronounce death, and often in other ways as well. (26) The professional competence of those doctors who have been involved has been questioned. (27) Some states go to elaborate lengths to assure their citizens that doctors are not performing the executions. (28)

In spite of the fact that doctors are not usually the writers or readers of these protocols, they often adopt a pseudo-scientific diction and format. For example, Professor Denno notes that the South Dakota regulations declare:

Any pharmacist ... is authorized to dispense the substance[s] ... without prescription [and that] ... [t]he chemicals will be kept in a secured location. The chemicals to be used are Sodium Thiopental ([a] lethal dose--[to] sedate [the] person), Pancuronium Bromide ([a] muscle relaxant--[to] collapse [the] diaphragm and lungs), and Potassium Chloride ([to] stop[ ] [the] heart beat). In between each dose of the prescribed chemical, a saline solution will be run through the I.V. line(s) to ensure mat the lines are kept free from any blockage. (29) The reference to "secured location" in South Dakota's protocols is just one example of how the regulations imply order and control, but in actuality, camouflage carelessness, a lack of attention to relevant detail, or, even worse, avoidance of the law.

New Mexico has over six pages of protocols, according to Professor Denno's study, including a pre-execution inventory and equipment check which requires the injection team to inspect the expiration and/or sterilization dates of all applicable items--replacing outdated items immediately, detailed set up procedures, and a requirement that death be pronounced by a physician after the completion of the injections. (30) One might ask why sterile instruments and materials are required since no post-operative infection is possible. (31) If the procedure undergone is successful, then the recipient of the injection will be dead.

Missouri initially had no written lethal injection protocol. (32) The state public information office informed Professor Denno that the chemicals Missouri used were sodium pentothal, pancuronium bromide, and potassium chloride. (33) Prior to calling a halt to its lethal injections in 2007, Missouri had one of the highest numbers of executions, along with Texas, Virginia, and Oklahoma. (34) Later in 2007, Missouri said that its protocols were confidential and could not be revealed. (35) It is a typical pattern that the states who have executed the most people have been least forthcoming with their written regulations. (36)

Montana's protocols filled...