Oklahoma’s botched execution of Clayton Lockett has brought increased attention to an issue that I have been concerned with for years – the increased “medicalization” of legally sanctioned executions, and, in particular, the role that medical professionals and the scientific community play in this process.
Until the 20th century, most executions were conducted publicly – execution was a communal ritual that served as a means of catharsis. But the American execution process has, over time, become less visible, and, as a consequence, subject to less public oversight. I believe that the movement of the capital punishment process “behind the curtain,” both literally and figuratively, should trouble death penalty opponents and supporters alike.
The standard lethal injection protocol used throughout the United States was developed in 1976 by Dr. Jay Chapman, Oklahoma’s state medical examiner, and Dr. Stanley Deutsch, chair of the Oklahoma Medical School anesthesiology department. Without testing or research, they settled on a three-drug protocol for executing prisoners – sodium thiopental, a short-acting barbiturate; pancuronium bromide, a paralytic; and potassium chloride, which stops the heart. Until recently, this was the combination used in every state.
Things began to change when Hospira, the U.S. pharmaceutical company that manufactured sodium thiopental, stopped making the drug in 2011. Since then, European manufacturers of sodium thiopental and pentobarbital have limited the production of these drugs, and the European Commission has restricted their export to the U.S. for execution purposes. And just last year, the U.S. Court of Appeals for the District of Columbia ruled in Cook v. FDA that the FDA lacks authority to permit importation of these drugs, which, when used for lethal injection, are considered “misbranded” under the FDCA. As a result, many states, including Oklahoma, have had to resort to other alternatives.
However, pushback from physician groups, pharmacies, and pharmaceutical companies has made it difficult for correctional facilities to implement their new plans. Every major medical society in the U.S. deems participation in lethal injection unethical, and many providers and companies are unwilling to participate, either for ethical reasons, or because they fear public backlash and reprisal. Thus, in an effort to protect potential participants in lethal injection, states like Oklahoma have adopted secrecy laws that make it impossible for even the condemned prisoners to learn about the people and procedures that will be involved in their executions. Such laws have been upheld by the 8th Circuit in In Re Lombardi and the 5th Circuit in Sepuvaldo v. Jindal (the Supreme Court recently denied certiorari in both cases). Clayton Lockett was challenging his execution on these grounds as well when he was executed on April 29th.
This narrative is deeply problematic. No matter what one’s views on the institution of capital punishment as a whole, the lack of transparency in the current process is troubling. It is troubling most obviously because it makes it impossible for prisoners and their advocates to understand the medical procedures (and I recognize that even the use of this term is hotly disputed) by which they will be executed, thus whether these procedures are likely to violate the Eight Amendment’s prohibition on cruel and usual punishment. But the more insidious problem, in my eyes, is that everything about the modern execution process – from the secrecy laws protecting the identity of participants, to the physical separation between condemned prisoners and those viewing and participating in their executions, to the use of a paralytic for the sole purpose of making the procedure more palatable for the viewers – is aimed at reducing transparency about the process and sanitizing the procedure for observers. If the only way our nation can conduct legally sanctioned executions is by shielding everyone and everything involved in the process, for fear that disclosure will cause public backlash, perhaps this should tell us something about the ethical permissibility of capital punishment as a general matter. While the involvement of medical procedures and personnel was originally intended to sanitize the process of capital punishment, perhaps we ought to instead heed Justice Brandeis’ counsel that sunlight is the best disinfectant.
Cross-posted at HealthLawProfBlog.