Today’s New York Times has two reports: a grim description of what happened before Clayton Lockett was executed on Tuesday, and an analysis of the common three-drug protocol for executing inmates in several states.
Since Lockett died of a heart attack after a botched attempt to execute him, it’s come out that he was actually tasered before being taken to the execution chamber, for he showed resistance. That’s the first time any condemned prisoner has ever been treated that way. Second, the initial reports that a vein in Lockett’s arm collapsed were apparently untrue. Instead, a phlebotomist or a doctor (it’s not clear which one, but doctors aren’t supposed to be assisting in executions) tried to insert a line into Lockett’s femoral vein (in the groin), not a good thing to do:
But Oklahoma officials said that problems with the IV delivery, not the drugs themselves, accounted for Tuesday night’s problems.
Anesthesiologists said that while they sometimes use a femoral vein accessible from the groin when those in the arms and legs are not accessible, the procedure is more complicated and potentially painful.
Putting a line in the groin “is a highly invasive and complex procedure which requires extensive experience, training and credentialing,” said Dr. Mark Heath, an anesthesiologist at Columbia University. Oklahoma does not reveal the personnel involved in executions.
“There are a number of ways of checking whether a central line is properly placed in a vein, and had those been done they ought to have known ahead of time that the catheter was improperly positioned,” Dr. Heath said.
Dr. Joel Zivot, an anesthesiologist at the Emory University School of Medicine, said that the prison’s initial account that the vein had collapsed or blown was almost certainly incorrect.
“The femoral vein is a big vessel,” Dr. Zivot said. Finding the vein, however, can be tricky. The vein is not visible from the surface, and is near a major artery and nerves. “You can’t feel it, you can’t see it,” he said.
Without special expertise, Dr. Zivot said, the failure was not surprising.
And this is an understatement:
David Dow, a death penalty appellate lawyer in Texas, said that prisoners sometimes resist leaving their cells, but that “it’s not something that happens regularly.” He expressed surprise that the medical staff administering the drugs did not have a second vein ready in case of problems with the first. “For a state that executes people,” he said, “they are awfully bad at it.”
This has been a mess. Not only was the execution botched, perhaps by incompetent technicians or doctors, but Oklahoma has been releasing incorrect information on what happened, and bit by bit. They should have waited for a full investigation, and made it absolutely public. The secrecy is unwarranted. And the execution was certainly “cruel and unusual punishment”.
So is the use of three drugs. The other article answers a question that several people had, including myself: do we really need to use three drugs given that large animals can be peacefully euthanized with a single injection, and terminal patients in Switzerland with a single drink? (Doctors often give an overdose of morphine to terminal patients, knowing it will kill them.) The answer is no: a single drug—a barbituate—will suffice, and in fact has been used in several states. The three-drug cocktail is a mess: one supposedly puts you under, the second paralyzes your breathing muscles, and the third stops your heart. But if the first one doesn’t work well, you’ll be conscious while the second and third ones work: horribly painful when you’re aware.
Physicians have long known that large doses of single drugs — certain sedatives or anesthetics — can take a life painlessly, and with far less distress than the three-drug cocktail causes if the injection is botched.
Since 2010, more death-penalty states — Oklahoma not among them — have moved to use single drugs for lethal injection. Even critics of the death penalty say most of those executions have gone more smoothly than ones involving multiple drugs.
Barbiturates, including sodium thiopental and pentobarbital, infused into the bloodstream can quickly make a person go deeply unconscious, stop breathing and die. Dr. Mark J. Heath, an anesthesiologist at Columbia University and an expert on lethal injection, said that high doses of pentobarbital were routinely used to euthanize animals, from pet rabbits to beached whales.
Barbiturates alone have been used in 71 executions, in Arizona, Georgia, Idaho, Missouri, Ohio, South Dakota, Texas and Washington, said Jennifer Moreno, a lawyer with the Death Penalty Clinic at Berkeley Law School.
Even though Dr. Heath opposes lethal injection, he said, “I have not seen a single complaint, not an unhappy warden or family or anybody, from the single-drug barbiturate approach.”
So why are we even using the three-drug protocol? Apparently because it was developed by a doctor in Oklahoma in 1977 (Dr. Jay Chapman, the state’s medical examiner), and it’s been used there and in other states simply out of inertia. In fact, Chapman later said that he’d recommend a single injection of barbituate instead.
The problem is not just that, though: it’s also the fact that the drugs are intravenously injected, with the needles put in by people who are largely inexperienced, and that the doses of the drugs may be too low.
The three-drug cocktail can be eliminated in favor of a more humane injection, and the drug doses can be fixed. But what can’t be fixed is the inexperience of people inserting the lines, and the absence of doctors supervising the process (it is rightly considered unethical for a physician to help kill someone.) What also can’t be fixed is thee new report suggesting that more than 4% of people on death row are likely to be innocent, and once executed cannot be brought back. And what also cannot be fixed is the inhumanity of the state’s killing someone for doing the same thing. That’s retributive punishment.
Since yesterday I’ve pondered my alternative to capital punishment—life without parole—and in light of a few readers’ comments have rethought it a bit. I now think it should not automatically be the alternative to capital punishment. After all, we don’t know if, say, a 25-year sentence instead would be a better deterrent, or if some prisoners can actually be rehabilitated if treated in a different way. Yes, some prisoners may have to spend the rest of their lives in jail, particularly if they’re psychopaths or incurably mentally ill in a dangerous way. But in other countries life without parole is not a sentence used often, even for horrible capital crimes.
The object of punishment, if you’re a determinist, is threefold: deterrence, rehabilitation, and sequestration of offenders from society to prevent further harm. (Retribution isn’t a viable option since it accomplishes nothing but cater to our desire for reventge.) None of these are met by capital punishment, and maybe not by automatic life-without-parole sentences, either. If you don’t think a murderer or rapist had a free “choice” about what he did, then you have to rethink how to deal with his transgression. The reason we don’t concentrate more on what forms of punishment are best for deterring others, rehabilitating offenders, and keeping them out of society until they do no more harm, is because those things are hard to do. They take empirical study—scientific analysis. But it’s what we must do if our justice system is to be both rational and humane. What you don’t do is keep on inflicting cruelty simply because that’s what’s always been done.