Academic journal article Fordham Urban Law Journal

Thiopental in Lethal Injection

Academic journal article Fordham Urban Law Journal

Thiopental in Lethal Injection

Article excerpt

I. INTRODUCTION

In the United States, the current protocols for execution by lethal injection call for the administration of the combination of three drugs: the anesthetic thiopental, a barbiturate; (1) the paralyzing agent, pancuronium bromide; and potassium chloride, the drug that interrupts electrical cardiac conduction. States differ in the doses and methods of administration; however, the most common dosing regimens call for the administration of a sequence of intravenous drugs by bolus administration; first, a single injection of two to five grams of thiopental; next, an injection of sixty milligrams of pancuronium bromide; finally, an injection of 240 milliequivalents of potassium chloride, or less, depending on the protocol.

An inmate must be unconscious in order to avoid the sensation of suffocation from paralysis caused by the second drug, or the pain caused by the intravenous infusion of concentrated potassium. A critical question in this regard is whether the dose and method of administration of thiopental is adequate to reliably render the inmate unconscious until death occurs.

On January 7, 2008, the United States Supreme Court heard oral arguments in Baze v. Rees. (2) One of the issues raised is whether the procedures in place are capable of adequately assuring successful administration of death to meet the constitutional standards of the Eighth Amendment. An important part of the argument rested on the qualities and attributes of the anesthetic thiopental. Mr. Verrilli, counsel for the petitioner, conceded that if the dose of the anesthetic thiopental was "always" properly administered into the condemned inmate there would be no "risk." (3) In other words, the inmate would not suffer the terror of suffocation or the pain of intravenous potassium chloride. Of course, he continued, there could be no guarantee and one could not assure successful administration of the thiopental unless proper monitoring was involved. Justice Scalia quickly pointed out that medical doctors cannot participate in executions according to the ethics guidelines of the American Medical Association, and therefore could not serve as monitors. (4) At this point in the testimony, Mr. Verrilli put forth a highly contentious assertion that thiopental alone was an alternative method of lethal injection:

   Well, Your Honor, of course, that's why there is another practical
   alternative here, which solves that problem, which is the single
   dose of barbiturate, which does not require the participation of a
   medically trained professional.... [T]hiopental is a barbiturate
   and by definition will inflict death painlessly. The record in this
   case establishes--each expert, the Petitioner's expert and
   Respondents' expert, testified that it is guaranteed at the three
   gram dose to cause death. (5)

Later, Chief Justice Roberts inquired, "that method has never been tried, correct?" Mr. Verrilli replied, "Well, it has never been tried on humans. That is correct." (6) Interrupted at that point, it is left to speculation what Mr. Verrilli would have said had he been allowed to continue. Mr. Verrilli is correct that sodium thiopental is unstudied as a single killing agent for humans. It is also not the agent of choice in animal euthanasia. It is sodium pentobarbital that is most commonly used to euthanize animals. (7)

The proposal of a single drug protocol using thiopental as an effective new method of execution by lethal injection, and the basis on which that proposal is put forth, namely, Mr. Verrilli's invocation of the testimony of the medical experts on both sides of the arguments in Baze v. Rees, demands scrutiny. It is highly unlikely that the medical experts in Baze, Mark Dershwitz, M.D., testifying for the state, and Mark Heath, M.D., testifying on behalf of the plaintiffs, intended to testify that thiopental would serve as an effective single killing agent or to establish thiopental as a new single dose lethal injection protocol. …

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