After the botched execution: It’s time to lift the veil of secrecy

With new revelations emerging every day about the botched execution of a prisoner in Oklahoma, even those who favor the death penalty (I am a strong opponent) may have some reservations about the way it is carried out. Despite the uproar from both sides, I believe there are some major ethical considerations that have been overlooked in this case.

Setting aside for a moment the American Medical Association (AMA) Code of Ethics, which states that “a physician … should not be a participant in a legally authorized execution,” we can explore those concerns.

The first is the prohibition of “cruel and unusual punishment” in the Eighth Amendment to the U.S. Constitution. Although there would have to be a determination by the courts that the constitutional right of Clayton D. Lockett, the Oklahoma prisoner, was violated, it’s a matter of common sense that an action that results in a person “writhing and moaning in agony” (as described in a New York Times editorial) constitutes cruelty. The reason lethal injections were adopted in the first place is that they were seen as more humane than hanging or firing squads. Administering the death penalty in a way that causes demonstrable harm may not meet a legal test of “cruel and unusual punishment,” but it certainly violates the prohibition of cruel and unusual punishment from an ethical point of view.

A second consideration has not been mentioned so far in the news accounts of the Oklahoma case that I have read. That is the question of whether the three-drug combination for the lethal injection prepared by compounding pharmacies amounts to experimentation on prisoners.

Federal regulations strictly limit such experimentation.

The type of research that is permitted must be on conditions particularly affecting prisoners as a class, or “research on practices, both innovative and accepted, which have the intent and reasonable probability of improving the health or well-being of the subject.”

The Times editorial describes the contents of the injection as an “untested combination” of three drugs and “new formulas” concocted by prison systems. Is this human experimentation on prisoners? It certainly appears to be.

However, several reasons militate against considering these untested drug combinations research. Perhaps the most telling reason is the widely accepted definition of “research”: “a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge” (45 CFR 46.102).

Biomedical research today is carried out in accordance with a written protocol, which must be prospectively reviewed and approved by an institutional review board (IRB) comprising medical experts and members unaffiliated with the institution conducting the research. In reviewing the protocol and procedures for conducting the research, the IRB must determine that risks to subjects are minimized. When the research involves experimental drugs, the manufacturers’ brochures are normally provided to the IRB reviewing the research. Nothing in the way prisons obtain these drug combinations fits the picture of human subjects research as defined in the federal regulations (45 CFR part 46, subpart C). As one article says: “Prisons generally keep the identity of the pharmacies a secret, and it is not clear where the compounders get their raw materials.”

So there are two possibilities. Either the administration of lethal injections of untested materials from secret sources is not human subjects research, but simply “prison practice” in administering the death penalty, or it is human subjects research in flagrant violation of existing regulations.

It is likely that experts familiar with the federal regulations governing research would take the former view. But that does not take prison systems like the one in Oklahoma off the moral hook. Even if the use of untested drug combinations obtained from fly-by-night, secret outlets is not research, and even if killing prisoners in this way does not amount to a violation of the Eighth Amendment, it is still a serious ethical violation of humane practices.

The secrecy surrounding the business of lethal injections is remarkable, considering that the practice is carried out by states accountable to their populations. Prisons keep the identity of the pharmacies a secret and the pharmacies do not reveal the sources of their materials. Prisons also keep secret the identities of the physicians involved in the executions. If the revelations in the Oklahoma case are typical, it is not unreasonable to question the actual role and competence of the physicians engaged in this work. And given the AMA’s opposition to physicians’ involvement in executions, it is no wonder they do not want their identities revealed.

Incidents like the botched execution in Oklahoma bring to light information about practices and procedures that are largely unknown. We have no way of knowing how many and what kinds of similar incidents occur in other states that lawfully kill prisoners.

In light of the Oklahoma incident, President Obama has called on the U.S. attorney general to formally review how the death penalty is applied.

Given the stakes, it’s time to lift the veil of secrecy. We need transparency, not a drawn curtain.

Ruth Macklin is a professor, department of epidemiology and population health, Albert Einstein College of Medicine, Bronx, NY. She blogs at The Doctor’s Tablet.

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  • pmanner

    Just for yucks, here’s Clayton Lockett’s record.

    In 1999, Lockett kidnapped, beat, and shot nineteen-year-old Stephanie Neiman and ordered an accomplice to bury her while she was still breathing. She died from two wounds from a shotgun fired by Lockett.[5] In 2000, he was convicted of murder, rape, forcible sodomy, kidnapping, assault and battery and sentenced to death. Previously Lockett was sentenced to four years in prison for a conviction in 1996 in Grady County for conspiracy to commit a felony.

    In 1992, at the age of nineteen, he pled guilty in Kay County to burglary and knowingly concealing stolen property. He received a seven-year prison sentence. Earlier that year, he pled no contest to two counts of intimidating state witnesses. At his 1999 murder trial both DNA from the dead victim, fingerprints from the duct tape used to bind the victim, and eye witness testimony led to his murder conviction.

    Stephanie Neiman, a nineteen-year-old high school graduate and friend of Lockett’s other victims, was a witness to his crimes. The men beat her and used duct tape to bind her hands and cover her mouth. Even after being kidnapped and driven to a dusty country road, Neiman didn’t back down when Lockett asked if she planned to contact police. After she stated she would go to the police, Lockett decided to bury her alive.
    Let’s stop pretending that human filth like Clayton Lockett deserves mercy, or anything other than the same level of consideration he gave his victims.

    • guest

      This doesn’t matter to the anti-DP people. Read any of the jackets of some of the men and women on death row around the country and your stomach will turn. The crimes are incomprehensible. Check out the jacket on Warner, the other prisoner from OK who got a stay because of Lockett’s execution.

      A lot of these people are irredeemable sociopaths who cannot be rehabilitated. It’s chilling at times to know they once lived amongst us. I would never shed one tear if every execution was “botched” like Lockett’s for some of these inmates.

    • querywoman

      Technically I don’t believe in the death penalty, but people like Lockett hard-press me to find an excuse for not doing it, and it certainly doesn’t have to be in a pain-free way.
      One evening, and through the next day, I nearly barfed reading why people are on Texas death row. Florida has some real vicious killers too.

      • guest

        I’ve been haunted also by reading a few too many death row inmates’ stories. The ones involving rape, torture and murder of little kids just destroy me. One story still bothers me even though the actual crime was 20 years ago! The lowest dirtbags I have read about were in Oregon, Texas and North Carolina. They are in every state.

        • querywoman

          Texas is a big state. We have lots of criminals.
          I’ll never forget that particular research night. I also saw a picture of Ted Bundy’s dead body on the net. I was getting ready to go to sleep, and thought I’d be all right.
          The next day, as I was heading to lunch, I told a friend I felt very ill and why!
          Yeah, ill in a way doctors can’t fix!

  • NormRx

    “In light of the Oklahoma incident, President Obama has called on the U.S.
    attorney general to formally review how the death penalty is applied.”

    This from a president that has authorized the execution of American citizens overseas without benefit of trial. Authorized drone strikes on suspected foreign terrorist while killing innocents that may be in the target area.

    The AMA is against the death penalty and President Obama is concerned. Well, that is reason enough to terminate this practice. I have so much respect for the AMA and the president. Pardon me if I don’t shed a tear over the death of Clayton Lockett.

  • Paul

    On the one hand, the AMA wishes to prevent physicians from assisting in legal executions. The American Board of Anesthesiologists would censure any member who assists in an execution. After refusing to assist, it strikes me as petty to complain about the poor quality of executions.

    I would suggest that veterinarians, who have vast experience at humane killing, be enlisted to assist with executions. I personally don’t lose much sleep over the execution, however painful, of Clayton Lockett. It was still better than he deserved. Rather than mucking about with the 3 drug cocktail, just use an overdose of phenobarbital or sodium thiopental. Alternatively, shooting in the back of the head at close range with a large bore handgun or rifle would be quick and painless, although messy.

    • ninguem

      And to that end, bills suggesting a return to the firing squad have, in fact, been brought to at least one State legislature already.

      • NewMexicoRam

        A guillotine would be the quickest and most consistantly effective, and doesn’t need a doctor.
        The outcry against it would be very loud though.

        • SteveCaley

          I suppose, though, it would be Best Practices. The French Revolution was VERY evidence-based.

        • querywoman

          That’s what I’ve read, that the Big G is the quickest, calmest way to go.

        • querywoman

          Yeah, you are correct about the outcry. The guillotine is most cruel to the living left behind.
          Some people will always feel guilty about executing the worst criminals.

    • FriendlyJD

      States have rejected using just phenobarbital or sodium thiopental because they take too long to actually cause death. From my understanding (as lawyer who used to work in a capital habeus unit in Arizona, not from a medical prospective), the three drug cocktail was supposed to make the death happen faster. Arizona has a sort of viewing room and some officials thought 30 to 45 minutes from injection to death was too long. My recollection from my trip to execution facility is that they added potassium to speed up the time to a flat-line on the heart monitor.

      • guest

        I thought the move away from pentathol was because European manufacturers would no longer provide it for executions. I would have to say from what I’ve seen personally a blast of pentathol produces unconsciousness much faster than a dose of versed.

        I’m all for a return of either the firing squad or guillotine. Take physicians and drugs out of the equation.

  • ninguem

    Oh, boy, another capital punishment screed.

    What, was Cheesecake Factory closed?

  • Mike Henderson

    I may be mistaken but getting a large benzo dose wouldn’t cause anyone pain. He may have been moving but don’t believe he was suffering from the drug. I once gave a patient in the ICU over 25 mgs of at ativan. It didn’t have any evident effect on consciousness or breathing. Don’t worry, it was given incrementally in order to intubate him.

  • guest

    Well, Missouri is scheduled to execute someone Wednesday at 12:01 AM. The world will be watching!

  • DeceasedMD1

    regardless of methods, clearly this is a conflict about the very idea of the death penalty that is being played out. If no authorities can get the drugs for it, and it’s all a secret it must mean the tide is shifting and many Americans are now against it or at least want to distance themselves from it as it would look bad to others to be involved. It’s as if we need to punish in secret. Exposing these practices will not necessarily change the process as there clearly is a lot of conflict whether it is ethical or not.

  • PoliticallyIncorrectMD

    Cruelty? Is there anything to suggest that the uncomfortable manner of death in this case was intentional? Being unusual? We routinely use same medications in clinical practice for decades. Also, I am not sure what exactly is suggested by the author. Should we engage in randomized double blinded placebo controlled trials on lethal drug combinations? Or perhaps knowing the drug mechanism and having some common sense is sufficient. I welcome the debate on merits of the death penalty, but this particular argument is just grasping for straws.

  • B Viner

    If it was one of my children that was raped or killed, they wouldn’t need the drug cocktail. I worked at a prison during med school and 90% of inmates are unable to be decent members of a society. I couldn’t even imagine one on death row.

  • Eric W Thompson

    I would find banning the death penalty acceptable under certain circumstances: 1. Life imprisonment without parole would be automatic. 2. For any such person who is paroled or let out and commits another such crime, the person responsible for the release would be accountable as an accomplice with mandatory imprisonment. 3. A cap on what can be spent to incarcerate such a prisoner. Should be cold in winter and hot in summer. Basic medical care, no more than what a medicaid patient could expect. And his familiy billed. 4. Televisions banned. Huge fines for anyone bringing televisions or computers into the prison. 5. No visitors other than a lawyer.
    As it is violent criminals are released and commit crimes again. The death penalty is a deterrent: no one who has been executed has ever committed another crime. Unlike those who are paroled. Rehabilitation has a very poor success rate.

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