Today’s Washington Post has a story about a new study published in a medical journal about lethal injection protocols used in death penalty cases. When you compare the actual study to the media coverage of it, however, there seems to be a pretty major gap between the two. Here’s the beginning of the Post story:
Drugs Used in Executions May Cause Paralysis, Pain for Conscious Inmates
By Rob Stein
Washington Post Staff Writer
Tuesday, April 24, 2007; Page A11The cocktail of drugs used for lethal injections is unreliable and could render inmates paralyzed but not unconscious, unable to cry out as they experience excruciating pain and eventually suffocate, according to a new scientific analysis.
The analysis, released yesterday and based on published data about the three drugs used and public records of executions in North Carolina and California, concluded that the protocol does not dependably induce a quick, painless death.
“This raises the possibility people are being tortured and you can’t see it because they are paralyzed,” said University of Miami surgery professor Leonidas G. Koniaris, who led the analysis. “I’m not sure a civilized society should be doing this.”
The analysis comes at a time of turmoil over the use of lethal injection. At least 11 states have suspended executions after botched injections raised questions about the procedure and its administration.
The analysis, which was conducted to determine whether the process works when done correctly, concludes that the process is fundamentally flawed.
“I find it very disturbing,” said Teresa A. Zimmers, a University of Miami research assistant professor who helped write the report.
“There is very little science behind this protocol, and the picture of lethal injection being a humane way to execute someone is completely wrong,” she said.
The findings were seized upon by opponents of the death penalty.
“It’s horrifying to read this,” said Deborah W. Denno of Fordham University’s law school. “What states are supposed to do is execute inmates in a humane way. There is clearly pain and suffering occurring.”
I found the full study online, and I was interested — although hardly suprised — to see that the actual scope and nature of the study was quite different from what the Post was reporting. At least that’s how it seems to me; I would be interested to know if you have the same reaction.
The journal article is by several physicians, a business school professor, and a capital defense lawyer, and it is about the time it takes to induce death using different types of lethal injection protocols in death penalty cases. The authors reviewed the time-to-death in 33 North Carolina executions and 11 Calfornia executions for which records were available (due to litigation and other record keeping).
The key findings, at least as I read the journal article, were as follows. First, the time after the first drug is administered to when the condemned is pronounced dead is usually about 10 minutes. There are slight differences in the average time to death for different protocols; some protocols averaged about 8 minutes, others as much as about 12 minutes. And there is some variation for individual protocols, as well: for example, a protocol with an average time to death of 10 minutes might actually have a range of about 5 minutes to 20 minutes.
Perhaps I am misreading the journal article, but as best I can tell, that’s it: it’s only about the time-to-death using different protocols. Indeed, if you read the fine print of the journal article, the authors note that they have no basis for linking the time of death to particular physical experiences by the condemned: it seems that the “medical literature addressing the effects of these drugs at high doses and in combination is nonexistent,” such that “the adequacy of anesthesia and mechanism of death in the current lethal injection protocol remains conjecture.” The article does add some speculation about what might have happened in particular executions, but as far as I know is the same speculation that has appeared in litigation and law review articles on the topic. (If I’m wrong about that, please let me know.)
Why, then, do the authors feel comfortable condemning the current lethal injection protocols — the bottom line that seems to be the key issue picked up by the press? According to the paper, the reason is that the authors already believe that the lethal injection protocol is terribly flawed, regardless of the medical evidence here: “Despite such limitations, our analysis of data from more forthcoming states along with reports of problematic executions and judicial findings together indicate that the protocol of lethal injection for execution is deeply flawed.” It’s not entirely clear what they have in mind for that. But they cite only one source of authority here (see fn41): Judge Fogel’s remarkable decision from last December holding that the Eighth Amendment closely regulates how the death penalty is administered, including the design of the room, the lighting, and the number of people in the room when the execution occurs (prior VC coverage here and here).
Readers obviously will disagree about the death penalty, both as a matter of policy and constitutional law. And I’m certainly open to the argument that the existing lethal injection protocols are flawed, either in designed or execution. Still, it seems that there is much less to this study than the media coverage would have you believe.