How lethal injection reform constitutes impermissible research on prisoners.

• Author: Shah, Seema

This Article exposes how recent attempts at lethal injection reform have involved unethical and illegal research on prisoners. States are varying the doses and types of drugs used, developing methods designed for non-medical professionals to administer medical procedures, and gathering data or making provisions for the gathering of data to learn from executions gone wrong. When individual prisoners are executed under these conditions, states are conducting research on them. Conducting research or experimentation on prisoners in the process of reform is problematic because it violates state laws and ethical principles.

The Supreme Court has recently taken up the challenge of elucidating the standard for determining the constitutionality of lethal injection. The Court's fractured decision suggests that states may need to conduct lethal injection reform to develop procedures substantially similar to those used in Kentucky. It follows that the Court's decision may lead states to contravene state laws or ethical precepts regarding research with prisoners. Thus, this Article provides important limitations on the kinds of reform that may be permissible and outlines the open questions that must be addressed before it can be determined whether the risks and uncertainties involved in lethal injection can be remedied.

INTRODUCTION

The Supreme Court recently issued a fractured decision in the case of Baze v. Rees allowing Kentucky's lethal injection procedures to stand and articulating standards for applying the Eighth Amendment's prohibition on cruel and unusual punishment to execution by lethal injection. (1) Execution by lethal injection had previously come to a halt in eleven states as a result of dramatic evidence of its potential to cause excruciating pain and prolongation of death. (2) These problems led some courts to conclude that, as currently practiced, the lethal injection system is broken and runs a substantial risk of involving cruel and unusual punishment. (3) States have applied varying standards for evaluating lethal injection, such as "wanton infliction of pain," "excessive pain," "unnecessary pain," "substantial risk," "unnecessary risk," and "substantial risk of wanton and unnecessary pain." (4) These standards reflected considerable confusion in the courts about how to evaluate lethal injection. In attempts to resolve the uncertainty and concern about the risk of pain inherent in existing lethal injection protocols, many states began to reform their current lethal injection procedures.

The Supreme Court decision in Baze may resolve some of the controversy in the short-term. A majority of justices agreed that the petitioners did not carry their burden to show that Kentucky's lethal injection protocol is unconstitutional, and further signaled that states that refuse to change their methods when there are feasible alternatives presented to them may be in violation of the constitution. (5) Yet, the long-term picture is much more unclear. The justices are in considerable disagreement about the correct standard for evaluating lethal injection procedures. (6)

In all of the extensive litigation and debate over lethal injection, one important issue has been entirely neglected. This Article will argue that in their attempts to reform lethal injection, states have experimented with different procedures and revised their lethal injection protocols, thereby conducting research on prisoners. The process of revision and reform therefore comes into conflict with regulations or policies governing research on prisoners, with which states must comply. (7) Thus, attempts to develop appropriate lethal injection protocols in a manner that constitutes experimentation on prisoners have required the use of prisoners as research subjects in a manner that violates state laws and ethical precepts. The Supreme Court's ruling in Baze may exacerbate this problem by prompting states to reform their procedures. Future attempts at reform may be similarly problematic and, indeed, without substantive changes in state law and regulations, this conflict may ultimately be irresolvable.

The potential scope of this problem is vast. Several states are conducting impermissible research on prisoners, and the number of prisoners involved, although decreasing each year, is troubling. In 2006, fifty-two people were put to death by lethal injection; sixty people were put to death the previous year. (8) In all, 897 inmates have been put to death using lethal injection since the reinstatement of the death penalty in 1976. (9)

In Part I of this Article, I will first provide some background on how lethal injection protocols were developed, how they are currently implemented, and what problems have arisen. In Part II, I will provide a definition of research and apply that definition to lethal injection reform, as well as clarify two areas of conceptual confusion with a discussion of quality control and what counts as a medical procedure. In Part III, I will analyze how the laws governing research with prisoners apply to California and Florida, two of the states which have undertaken extensive reform efforts, and Kentucky, the state involved in the litigation currently before the Supreme Court (while briefly noting how these arguments would apply to other states). In Part IV, I will address the ethical problems in the conduct of execution research on prisoners, and in Part V, I will respond to a potential objection to the ethical arguments raised herein. I will conclude with a discussion of how these arguments pertain to the Supreme Court litigation, future attempts to reform lethal injection, and laws governing research with prisoners more broadly.

1. LETHAL INJECTION PROTOCOLS

   1. Historical Background

      In 1977, Oklahoma pioneered the first lethal injection protocol. (10) The protocol was developed by two state legislators, State Senator Bill Dawson and House Representative Bill Wiseman. (11) These two politicians approached medical societies for help in devising lethal injection protocols, but their requests for assistance were denied. (12) Wiseman and Dawson then contacted Dr. A. Jay Chapman, Oklahoma's Chief Medical Examiner, whose initial response was to demur because his expertise was in "dead bodies but not [] in getting them that way." (13) Nevertheless, Wiseman and Dawson persuaded Dr. Chapman to give his assistance, and he devised a process that would involve an intravenous saline drip, into which a lethal chemical would be introduced. (14) The lethal chemicals he proposed were an ultra-short-acting barbiturate and a chemical paralytic. (15) Chapman further suggested that the procedure use sodium thiopental as the barbiturate and chloral hydrate as the chemical paralytic. (16) However, the protocol was designed to be vague and not specify the specific chemicals that would be used. At the time, it was not clear when lethal injection would be implemented, or what drugs would be available at the time it was put into practice. (17)

      Dr. Stanley Deutsch developed a similar protocol that may also have served as a basis for subsequent lethal injection methods. (18) Dr. Deutsch was initially approached by Dawson to devise a method of lethal injection that was relatively inexpensive and more humane than the alternative which, at the time, was electrocution. (19) Dr. Deutsch suggested the use of two drugs: an ultra-short-acting barbiturate followed by a drug that would create "a long duration of paralysis." (20)

      Legislation implementing a lethal injection protocol based on Chapman's recommendations passed the Oklahoma Senate on March 2, 1977 and the Oklahoma House of Representatives on April 20, 1977. (21) However, it is unclear whether Dr. Deutsch's input influenced Oklahoma's protocol, because Chapman provided the senators with information after the initial passage of the statute. (22) At the time, officials with the Oklahoma Department of Corrections (ODOC) were not certain what drugs would be used in implementing the statute; they assumed that new and better drugs might be available when the statute was put into practice. (23) In fact, the drugs that were used by the ODOC varied over time. In May 1978, the execution procedures used in Oklahoma specified the following: "The execution shall be by means of a continuous, intravenous administration of a lethal quantity of sodium thiopental combined with either tubo-curarine or succinyl-choline chloride or potassium chloride which is an ultrashort-acting barbiturate combination with a chemical paralytic agent." (24) In 1981, Chapman assisted the ODOC once more in creating a lethal injection protocol by adding a third drug to what has become known as the lethal injection "cocktail"--potassium chloride. (25) By 2004, the ODOC used sodium thiopental and vecuronium bromide, followed by potassium chloride. (26)

   2. Current Lethal Injection Protocols

      Lethal injection protocols vary somewhat amongst the states. Although some states do not specify a particular combination of drugs in their lethal injection statutes, in practice, all states administer injections of a sequence of three drugs modeled after Oklahoma's three-drug protocol. (27) The first drug is a dose of sodium thiopental that would not necessarily be lethal in the time allotted for execution, but that is intended to induce an anesthetic state. (28) The second chemical is pancuronium bromide, a neuromuscular blocking agent. (29) Pancuronium bromide only serves to paralyze the inmate. (30) The final chemical administered is potassium chloride, which is the agent that typically causes death by inducing cardiac arrest. (31) All states also use a saline solution in between the administration of each chemical to prevent the sodium thiopental and the neuromuscular blocking agent from mixing and forming a precipitate that could occlude the IV line. (32)

      Many inmate-specific issues may complicate the administration of anesthesia in the context of...