Experimental Execution
| Publication year | 2021 |
Although it is increasingly common to refer to lethal injection executions as experimental, this Article is the first to conduct a rigorous analysis of whether and to what extent executions by lethal injection involve the conduct of research and therefore should be analyzed under the ethical and regulatory framework that governs biomedical research. I argue that an important factor driving this high error rate is that the use of novel drugs, drug combinations, and dosages in lethal injection executions is a type of research. More specifically, it is poorly designed experimentation that is not based on evidence. If the death penalty is justified, individual inmates are being exposed to uncertain (and sometimes unnecessary) risks in order to obtain benefits for others by furthering the underlying aims of capital punishment.
This insight suggests three important conclusions. First, states should draw from existing scholarship on ethics and regulations that apply to biomedical research with captive and vulnerable populations. Prisoners are considered a vulnerable population, and experimental executions involving prisoners should abide by the general principles that are applicable to research: respect for autonomy, non-maleficence, and justice. Second, legal safeguards that follow from these principles should be applied to executions-in particular, states should ask for informed consent from prisoners to modifications of lethal injection protocols, obtain independent review by a regulatory body like the Food and Drug Administration, and apply a standard requiring risk minimization in the choice of drugs and procedures. Finally, states should systematically gather data as they engage in experimental execution.
INTRODUCTION ................................................................................ 148
I. A BRIEF HISTORY OF RESEARCH ON PRISONERS ................. 155
A. History of Research Ethics and Regulation ........................ 155
B. Should Research Protections Apply to Capital Punishment? ....................................................................... 163
II. HISTORICAL AND CURRENT DEVELOPMENTS IN EXECUTION BY LETHAL INJECTION ................................ 169
A. Brief History of Execution by Lethal Injection .................. 170
B. More Recent Developments in Executions ........................ 171
III. FEATURES OF LETHAL INJECTION INVOLVING RESEARCH .............................................................................. 176
A. Lethal Injection Executions as Involving Non-validated Practice ............................................................................... 178
B. Lethal Injection as Involving Research .............................. 182
C. Lethal Injection as Involving Quality Improvement .......... 189
IV. SPECIFIC ETHICAL AND REGULATORY SAFEGUARDS FOR LETHAL INJECTION EXECUTION .............................. 191
A. Independent Oversight ....................................................... 191
B. Minimizing Risk ................................................................. 194
C. Informed Consent ............................................................... 198
CONCLUSION .................................................................................... 202
INTRODUCTION
An execution in Oklahoma went terribly awry on April 28, 2014.(fn1) Oklahoma was administering a new execution protocol that used the drug midazolam, a sedative that is often used in combination with other anesthetic agents.(fn2) Oklahoma had never used this drug in executions before; in fact, only a few states had any experience with using the drug in lethal injections.(fn3) Florida had previously used this drug in lethal injections, but with a dose five times higher than what was indicated in Oklahoma's protocol.(fn4) If the execution had gone as planned, Clayton Lockett would have first received midazolam; been declared unconscious; then received vecuronium bromide (a paralytic/neuromuscular blocking agent that would restrict his movements); and finally received potassium chloride (the drug likely to end his life).(fn5) A few minutes after a prison official declared him unconscious, Lockett mumbled statements including the word, "man."(fn6) He "began breathing heavily, writhing, clenching his teeth and straining to lift his head off the pillow."(fn7) Prison officials then blocked the witnesses from observing the rest of the proceedings.(fn8) The Department of Corrections then called off the execution and unsuccessfully tried to resuscitate Lockett, and Lockett eventually died of a heart attack approximately forty-five minutes after the execution began.(fn9) Although a Department of Corrections official stated that Lockett's veins "exploded,"(fn10) an autopsy examination performed by a forensic pathologist hired by death row inmates appears to contradict official reports.(fn11) Prison officials claimed that they had to inject the drugs into Lockett's femoral vein, located in his groin, which is riskier and more difficult than using more common injection sites.(fn12) However, the autopsy report contradicts this claim, finding that Lockett's surface and deep veins had "excellent" integrity.(fn13) Another execution scheduled to occur that same night was stayed for several months, pending an investigation into Mr. Lockett's execution, but took place on January 15, 2015.(fn14) Clayton Lockett's estate has brought suit against the State of Oklahoma and a physician alleged to have been involved in the execution, claiming violations of the Eighth Amendment to the U.S. Constitution, international law, and human decency.(fn15) Meanwhile, Oklahoma has already modified the state's protocol by increasing the dose of midazolam that will be administered to inmates in future executions.(fn16)
More recently, on July 23, 2014, the execution of Joseph Wood in Arizona lasted for nearly two hours, with the inmate struggling to breathe and gasping over 600 times, according to a local reporter witnessing the execution.(fn17) As the reporter described it: "The movement was like a piston: The mouth opened, the chest rose, the stomach convulsed . . . ."(fn18) Arizona used two drugs, hydromorphone and midazolam,(fn19) which had previously been used in a botched execution in Ohio in January 2014.(fn20) The execution log reveals that Wood was injected with the drugs fifteen times in 114 minutes.(fn21) In the middle of the execution, attorneys for Mr. Wood filed an emergency appeal to a federal district court to stop it.(fn22) The transcript of this appeal reveals a great deal of confusion, with the state attorney general initially stating that Wood was brain dead, even though he was still breathing independently-a medical impossibility.(fn23) The court was not convinced that stopping the execution would eliminate pain or suffering given that the inmate's heart rate was slowing, and was also concerned that stopping the execution might do more harm than good.(fn24) Mr. Wood was declared dead before the hearing concluded.(fn25) The governor of Arizona, Jan Brewer, has announced that an investigation will be conducted into Wood's execution, while expressing that eyewitness and media reports indicated that he did not suffer.(fn26)
These examples are illustrative of a larger problem facing executions by lethal injection-the predominant method of execution used in the United States.(fn27) A recent study has estimated that seven percent of all lethal injection executions have involved serious errors, which is a higher rate of failure than any other method of execution.(fn28) Commentators have begun to argue that when executions by lethal injection try out unproven drugs and novel procedures for use on non-consenting inmates, lethal injection resembles "a nationwide, government-sponsored clinical trial"(fn29) that raises ethical and regulatory concerns and violates international legal norms.(fn30) Following the Lockett execution, a group of inmates in Oklahoma filed a lawsuit arguing that lethal injection involves unconstitutional experimentation on prisoners.(fn31) Although it is increasingly common to refer to lethal injection executions as experimental,(fn32) this Article is the first to conduct a rigorous analysis of whether and to what extent executions by lethal injection involve the conduct of research and therefore should be analyzed under the ethical and regulatory framework that governs biomedical research.
In this Article, I argue that it is theoretically helpful to understand recent changes...
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