The phenomenon of anesthetic awareness provides great fodder for Hollywood, but now it has also found its way onto the floor of the Supreme Court. Baze vs. Rees challenges the standard 3-drug lethal injection protocol on the basis that it may constitute cruel and unusual punishment, which is outlawed by the eighth amendment.
The current lethal injection protocol was developed in 1977 and consists of a fast-acting barbiturate (sodium thiopental) followed by a paralytic agent (pancuronium bromide) which prevents convulsions during the administration of a heart-stopping toxin (potassium chloride). Arguing on behalf of two Kentucky inmates, attorney Donald Verrilli made the argument that improper administration of the initial barbiturate could cause death row inmates to experience an “excruciating sensation of drowning or strangulation” before they pass away. Because of the paralytic agent, inmates would not be able to communicate their pain to executioners.
A glaring Catch-22 lurks behind this debate: the inmate will not experience pain if the anesthetic is administered effectively, but the American Medical Association (AMA) prohibits healthcare professionals from participating in executions. Interestingly, this hasn’t stopped many doctors from complying with government requests for supervision during executions. Atul Gawande wrote an excellent article profiling these individuals and the issues they face in the New England Journal of Medicine.
Particularly intriguing is the story of Dr. Carlo Musso, who participates in executions despite his personal belief that the death penalty is wrong:
He read about the ethics of participating. He knew about the AMA’s stance against it. Yet he also felt an obligation not to abandon inmates in their dying moments. “We, as doctors, are not the ones deciding the fate of this individual,” he said. “The way I saw it, this is an end-of-life issue, just as with any other terminal disease. It just happens that it involves a legal process instead of a medical process. When we have a patient who can no longer survive his illness, we as physicians must ensure he has comfort. [A death-penalty] patient is no different from a patient dying of cancer — except his cancer is a court order.” Dr. D said he has “the cure for this cancer” — abolition of the death penalty — but “if the people and the government won’t let you provide it, and a patient then dies, are you not going to comfort him?”
While the article is locked behind a subscription wall, NEJM has posted a free interview with Dr. Musso:
To be sure, these are murky ethical waters. While Dr. Musso makes a valid point about the inevitability of court-ordered executions, it seems like doctor participation sets a dangerous precedent. If doctors begin flouting the AMA’s code of conduct, then what will stop them from cooperating with torture in addition to executions? The U.S. government has already tried to make this happen.
For me, the obvious solution is to abolish the death penalty altogether, an idea that has already caught on in New Jersey. Indeed, Baze vs. Rees may be a veiled attempt to accomplish a similar goal at the national level. Writing for Slate, Dahlia Lithwick makes the point that this case is not really about pharmacology as much as it is about the constitutionality of the death penalty tout court. The Supreme Court’s decision to hear the case has imposed a de facto moratorium on executions across the country. I’m just crossing my fingers that this case doesn’t get closed anytime soon.