Fordham Law Review Volume 76 Issue 1 Article 3 2007 The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty Deborah W. Denno Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Deborah W. Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Fordham L. Rev. 49 (2007). Available at: https://ir.lawnet.fordham.edu/flr/vol76/iss1/3 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty Cover Page Footnote Arthur A. McGivney Professor of Law, Fordham University School of Law. B.A., University of Virginia; M.A., University of Toronto; Ph.D., J.D., University of Pennsylvania. I am most grateful to the following individuals for their contributions to this article: Ty Alper, Daniel Auld, David Baldus, David Barron, Ned Benton, Douglas Berman, Leigh Buchanan Bienen, John Blume, Edward Brunner, Peter Cannon, A. Jay Chapman, Eric Columbus, Stanley Deutsch, Richard Dieter, Lawrence Egbert, Watt Espy, Roberta Harding, Mark Heath, Fred Jordan, Natasha Minsker, Michael Radelet, Ellyde Roko, Ruth Wachtel, William Wiseman, and Arthur Zitrin. I give special thanks to Daniel Auld and Ellyde Roko for their superb efforts in collecting and analyzing the information on lethal injection protocols, and to Ellyde Roko for excellent research assistance. Jay Chapman generously and openly provided numerous articles, e-mails, telephone commentary, and private notes relating to the history of lethal injection and his particular role. Members of Fordham Law School's library staff--Laurence Abraham, Juan Fernandez, Todd Melnick, and Larry Reeves--gave wonderful expertise. Several individuals and organizations offered helpful information: Michelle Christ, Steve Hall, Rick Halperin, Gary Harrington, Charles Hoffman, Gavin Lee, Todd Maybrown, Eileen McNerney, Stephen Slater, and Wilmer Cutler Pickering Hale and Dorr LLP. Many prison officials and administrators throughout the country graciously provided their time and resources to describe the execution protocols and procedures that this Article discusses. The names and affiliations of these individuals are listed in this Article's Appendix. I thank Fordham Law School for research funding and the Fordham Law Review for outstanding editorial assistance. No individual or organization acknowledged in this Article necessarily supports the Article's interpretations or conclusions. Responsibility for any mistakes or misjudgments rests solely with the author. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol76/iss1/3 ARTICLES THE LETHAL INJECTION QUANDARY: HOW MEDICINE HAS DISMANTLED THE DEATH PENALTY Deborah W. Denno* On February 20, 2006, Michael Morales was hours away from execution in California when two anesthesiologists declined to participate in his lethal injection procedure, thereby halting all state executions. The events brought to the surface the long-runningschism between law and medicine, raising the question of whether any beneficial connection between the professions ever existed in the execution context. History shows it seldom did. Decades of botched executions prove it. This Article examines how states ended up with such constitutionally vulnerable lethal injection procedures, suggesting that physician participation in executions, though looked upon with disdain, is more prevalent-andperhaps more necessary-than many would like to believe. The Article also reports the results of this author's unique nationwide study * Arthur A. McGivney Professor of Law, Fordham University School of Law. B.A., University of Virginia; M.A., University of Toronto; Ph.D., J.D., University of Pennsylvania. I am most grateful to the following individuals for their contributions to this article: Ty Alper, Daniel Auld, David Baldus, David Barron, Ned Benton, Douglas Berman, Leigh Buchanan Bienen, John Blume, Edward Brunner, Peter Cannon, A. Jay Chapman, Eric Columbus, Stanley Deutsch, Richard Dieter, Lawrence Egbert, Watt Espy, Roberta Harding, Mark Heath, Fred Jordan, Natasha Minsker, Michael Radelet, Ellyde Roko, Ruth Wachtel, William Wiseman, and Arthur Zitrin. I give special thanks to Daniel Auld and Ellyde Roko for their superb efforts in collecting and analyzing the information on lethal injection protocols, and to Ellyde Roko for excellent research assistance. Jay Chapman generously and openly provided numerous articles, e-mails, telephone commentary, and private notes relating to the history of lethal injection and his particular role. Members of Fordham Law School's library staff-Laurence Abraham, Juan Fernandez, Todd Melnick, and Larry Reeves-gave wonderful expertise. Several individuals and organizations offered helpful information: Michelle Christ, Steve Hall, Rick Halperin, Gary Harrington, Charles Hoffman, Gavin Lee, Todd Maybrown, Eileen McNerney, Stephen Slater, and Wilmer Cutler Pickering Hale and Dorr LLP. Many prison officials and administrators throughout the country graciously provided their time and resources to describe the execution protocols and procedures that this Article discusses. The names and affiliations of these individuals are listed in this Article's Appendix. I thank Fordham Law School for research funding and the Fordham Law Review for outstanding editorial assistance. No individual or organization acknowledged in this Article necessarily supports the Article's interpretations or conclusions. Responsibility for any mistakes or misjudgments rests solely with the author. FORDHAMLA WREVIEW [Vol. 76 of lethal injection protocols and medical participation. The study demonstrates that states have continued to produce grossly inadequate protocols that severely restrict sufficient understanding of how executions are performed and heighten the likelihood of unconstitutionality. The analysis emphasizes in particular the utter lack of medical or scientific testing of lethal injection despite the early and continuous involvement of doctors but ongoing detachment of medical societies. Lastly, the Article discusses the legal developments that led up to the current rush of lethal injection lawsuits as well as the strong and rapid reverberations that followed, particularlywith respect to medical involvement. This Article concludes with two recommendations. First,much like what occurred in this country when thefirst state switched to electrocution, there should be a nationwide study of proper lethal injection protocols. An independent commission consisting of a diverse group of qualified individuals, including medical personnel, should conduct a thorough assessment of lethal injection, especially the extent of physician participation. Second, this Article recommends that states take their execution procedures out of hiding. Such visibility would increase public scrutiny, thereby enhancingthe likelihood of constitutionalexecutions. By clarifying the standards usedfor determining what is constitutional in Baze v. Rees, the U.S. Supreme Court can then provide the kind of Eighth Amendment guidance states need to conduct humane lethal injections. TABLE OF CONTENTS INTRODUCTION ......................................................................................... 51 I. THE SEARCH FOR A MEDICALLY HUMANE EXECUTION ..................... 59 A. Before Lethal Injection ......................................................... 62 B. The Advent of Lethal Injection.............................................. 64 1. Oklahom a Roots ............................................................... 65 2. No Medical or Scientific Study ........................................ 70 3. Human Execution and Animal Euthanasia ...................... 75 II. WHAT DOES "PHYSICIAN PARTICIPATION" MEAN? ............ .. .. 77 A . Copying Oklahoma ................................................................ 78 B. Medical Associations Respond .............................................. 79 1. The American Medical Association .................................. 80 2. A Breach of Trust ............................................................. 83 C. PhysiciansStill Participate.................................................... 84 D. Physician Participationin Context ....................................... 88 III. THE IMPORTANCE OF PROTOCOL ...................................................... 91 A. Lethal Injection Statutes ......................................................... 93 B. The Public Availability of Protocols .................................... 95 C. Changes in Lethal Injection Protocols ................................... 96 IV. THE SEARCH FOR A HUMANE EXECUTION CONTINUES ..................... 101 A. The Supreme Court's Involvement ........................................... 102 2007] THE LETHAL INJECTION QUANDARY 51 B. The Ripple Effects of Nelson and Hill ...................................... 106 1. C alifornia ........................................................................... 107 2 . M isso uri ............................................................................. 10 8 3. N orth C arolina ................................................................... 111 4