Anesthetizing the Public Conscience: Lethal Injection and Animal Euthanasia
Alper, Ty, Fordham Urban Law Journal
In the late 1970s, when Texas was considering whether to adopt Oklahoma's three-drug lethal injection formula for the execution of prisoners, Dr. Ralph Gray, the doctor in charge of medical care in Texas prisons, consulted with a Texas veterinarian named Dr. Gerry Etheredge. (1) Dr. Etheredge told Dr. Gray that veterinarians used an overdose of one drug, an anesthetic called sodium pentobarbital, to euthanize animals and that it was a "very safe, very effective, and very cheap" method of euthanasia. (2) Dr. Etheredge remembers that Dr. Gray had only one objection to using a similar method to execute human beings. "He said it was a great idea," Dr. Etheredge recalled, "except that people would think we are treating people the same way that we're treating animals. He was afraid of a hue and cry." (3) Texas rejected Dr. Etheredge's one-drug, anesthetic-only recommendation and, in 1982, became the first state to actually use lethal injection--via the three-drug formula--as a method of execution. (4)
This history is almost hard to believe in light of the fact that three decades later, death row inmates in Texas, as well as in nearly every other death penalty state, are challenging the three-drug formula on the grounds that the method is less reliable, and therefore less humane, than the method used to euthanize animals. (5) Rather than objecting to their clients being treated no better than animals, lawyers for the petitioners in Baze v. Rees, the lethal injection case pending before the Supreme Court, have essentially asked the Court to require the state of Kentucky to treat them at least as well as the state requires shelter workers to treat animals during the euthanasia process. (6) Veterinarians have testified on behalf of death row inmates in several states, (7) and groups of veterinary experts have filed amicus briefs on behalf of petitioners in the two most recent Supreme Court lethal injection cases, Baze (8) and Hill v. McDonough. (9)
The three-drug formula that states use to execute people is often misleadingly referred to as a "cocktail." (10) The three drugs are not mixed together like a cocktail; instead, they are administered serially, usually with a saline flush in between each drug, to clear the intravenous ("IV") line. (11) The drugs are, in the following order, thiopental, pancuronium bromide, and potassium chloride. (12) The first drug is intended to anesthetize the inmate so he does not experience the effects of the second and third drugs. (13) The second drug paralyzes him, and the third drug stops his heart, killing him. (14)
The use of pancuronium, the second drug, presents a problem that is fundamental to the controversy over the lethal injection procedure. Because pancuronium paralyzes the inmate during the execution process, the inmate may experience excruciating pain and suffering but be unable to cry out or even blink an eyelid to let anyone know if the anesthesia has failed. (15) Because pancuronium masks the ability of a lay observer to discern whether the anesthetic drug has been properly delivered, it is very difficult or impossible, in most cases, to know whether the lethal injection execution has been "botched." (16) Pancuronium virtually ensures that the execution looks "peaceful" (17) when it may have been anything but.
The pain and suffering that an inmate would experience if not properly anesthetized is extreme. Because pancuronium is a paralytic that restricts the ability of the respiratory muscles to contract, it causes asphyxiation. (18) The third drug, potassium chloride, causes excruciating pain that has been likened to the feeling of having one's veins set on fire. (19) Experts who have testified in lethal injection cases have unanimously agreed that it would be unconscionable to inject either drug into a person who was not anesthetized, (20) At issue in recent challenges to the administration of this procedure is whether, and to what extent, the public can be sure that prison officials are properly administering the first drug, the anesthetic, and monitoring its continued effect, such that the inmate does not experience the suffocation the second drug causes or the excruciating pain that the third drug inflicts. …