Untried and unethical: why Nevada's new lethal injection crosses a line
Today, Scott Raymond Dozier was scheduled to be executed by lethal injection in Nevada’s Ely State Prison. However, the execution has been postponed over concerns around the untested drug combination proposed as the method of death. The postponement is the latest incident in a series of controversial state executions carried out in the United States this year, and brings to the foreground many concerns and ethical issues around state execution – not least the use of the death penalty itself.
In Dozier’s case, a completely new three drug combination has been proposed for Dozier’s execution. The mixture of diazepam (a sedative), cisatracurium (a muscle relaxant), and fentanyl (a powerful pain-relieving opioid) has raised many concerns – principally because it is completely untried.
So why is this new form of injection being proposed? And what criteria do execution methods have to meet?
The primary aim of capital punishment is, of course, to ensure death. No one wants a prisoner reviving and perhaps having to go through the procedure again. Another aim might be to minimise the degree of suffering experienced by the prisoner in their final moments, although a look at the methods used by various governments around the world shows that this is not always a consideration. In the United States,
however, it is a legal requirement that executions do not constitute “cruel and unusual punishment”.
A paper written by Harold Hillman back in 1993 looked into the physical suffering of executions. He examined the pain likely to be experienced by those undergoing judicial execution by the various methods that were in use in 1989: beheading, hanging, stoning, shooting, electrocution, gassing and lethal injection. The paper concluded that, with the possible exception of lethal injection, all these methods were likely to cause extreme pain. Hillman’s important caveat was that the injections had to be administered successfully.
In the US, shooting, electrocution, gassing and lethal injection are all still legal methods of execution. However, most of states that still have the death penalty favour lethal injection.
Capital punishment by deliberate poisoning is hardly something new. In 399BC Socrates was famously condemned to death for corrupting the youth of Athens and chose to drink hemlock as his punishment. From Plato’s account of the death it appears to be relatively pain free. There must have been something else in the lethal mixture, as hemlock poisoning is a very unpleasant way to go. The exact recipe used by the ancient Greeks is not known. Whatever mixture was used it still took a considerable amount of time and, according to the gaoler, was not guaranteed to work with just one cup.
Hillman wrote his paper on the pain of capital punishment at a time when barbiturates were being used for executions in the US. Barbiturates are powerful sedatives that cause unconsciousness within minutes and slow the rate of breathing until it eventually stops. But manufacturers of barbiturate drugs have since changed their procedures to prevent these drugs being used for executions. Lethal injections since then have therefore had to be carried out using alternative drugs.
Many states in the US favour massive doses of a three drug combination for executions. The idea is to sedate the prisoner, paralyse them and then stop their heart. But manufacturers of drugs that can perform these functions continue to prevent sales for executions. This has led to some extreme tactics, including a rush to execute four people in a single week in Arkansas in April this year before the state’s stock of drugs went past its expiry date.
The executions carried out back in April of this year used midazolam, vercuronium bromide and potassium chloride. The first drug, midazolam, is a short-acting sedative. This particular drug has been associated with several botched executions, such as that of Clayton Lockett.
The second drug, vercuronium bromide, blocks chemical signals reaching receptors on motor neurons, the nerve cells that trigger movement. The result is paralysis of muscles, including the muscles needed for breathing. If the prisoner is not fully sedated by the midazolam, the pain and distress of suffocation will be considerable.
Once the prisoner has been immobilised, the third drug can be administered to stop the heart. Potassium chloride has been used in several executions. Potassium is an essential element for the normal functioning of the heart as it is involved not only in nerve signals that coordinate the heartbeat but also in the contractions of the heart cells themselves. An excess of potassium causes cardiac arrest. Cardiac arrest is not always painful, but the potassium injection itself is notoriously agonising and has been described as a severe burning sensation. The immobilising injection of rocuronium bromide could potentially mask signs of any pain the prisoner is experiencing.
On 24 August 2017, Mark James Asay was executed in Florida. No midazolam was available because drugs companies had restricted the sales of the drug. So, an alternative protocol was devised that stuck fairly closely to the previously used triple combination. The new protocol of etomidate, rocuronium bromide and potassium acetate received condemnation from several quarters.
Rocuronium bromide is very similar to the vercuronium used previously, and was not a particularly controversial substitution. The use of potassium acetate instead of the usual potassium chloride raised a few eyebrows. Potassium acetate had only been used once before for lethal injection and that was a mistake (apparently the wrong bottle was picked up). However, it is the potassium part of the compound that does the damage and so, if using the right dosage, it should have exactly the same effects as potassium chloride.
It was the choice of etomidate that caused most concern. Etomidate is a fast-acting but short-lasting sedative used to anaesthetise patients before short, painful procedures such as relocating dislocated joints. With therapeutic doses the effects of the drug can wear off in as little as five minutes. One minute after injecting etomidate into Asay’s body his foot was seen to twitch. Asay was pronounced dead 12 minutes after the first injection was administered.
As more and more stocks of drugs go out of date and replacements are in increasingly short supply even more radical alternatives have been proposed. The state of Nevada ran out of drugs for lethal injections in 2016. When it made 247 solicitations for proposals from drugs companies it received no offers. Not one. This was not immediately a problem: Nevada hadn’t executed anyone since 2006 and at that time had no plans to execute any of the 81 prisoners on its death row. When Dozier’s execution was scheduled, that changed.
Any of the three drugs in the combination proposed for Dozier’s execution – diazepam, cisatracurium and fentanyl – could kill an individual if administered in a sufficiently high dose, but there are many unknowns. First of all, no one can be certain how these three drugs will work in combination. No information has been released (at the time of writing) about how the drugs would be administered, in what order or at what dosage. In fact, it begins to sound distinctly as though an execution under these circumstances would be akin to an experiment – and there are very specific laws about experimenting on prisoners.
The states of Florida and California offer inmates an injection of diazepam immediately before the lethal injection procedure is started, to relieve anxiety. It is not normally part of the three drug combination designed to result in the death of the prisoner. Though diazepam is regularly prescribed to treat anxiety, the anxiety of imminent death is a level of distress that it is difficult to test for ethically. Consequently, it may or may not be effective in these circumstances.
Cisatracurium paralyses skeletal muscles and at high dose would result in death by suffocation. Signs of distress will be masked by this drug as the individual can no longer move to signal any pain they are experiencing.
Fentanyl is easily the most lethal of the three drugs. The fact that fentanyl is already killing American citizens at a terrifying rate in the country’s ongoing opioid crisis testifies to its lethal potential. However, it makes the choice of its use for a deliberate death appear crass to say the very least.
Fentanyl kills by suppressing respiration, meaning that Dozier would suffocate. Fentanyl is also a powerful pain relieving drug so it should, in theory, be a painless experience. However, those who have experienced fentanyl overdoses speak clearly of being unable to breathe and how distressing this is.
As more and more drug companies restrict the sale of certain products for lethal injection, the options available dwindle. With over 2,800 prisoners on death row across the US the manner of their death looks increasingly uncertain – and if untried drug combinations are approved for use, potentially “cruel and unusual” too.
There are more than 2,800 prisoners on death row in prisons across the United States. Photograph: Pat Sullivan/AP