In-Depth Look at the Law: Does the Florida Death Penalty by Lethal Injection Violate the Constitution? (Part 2)

Today, in part two of our three part series: the three drugs that make up the Florida execution cocktail are discussed in detail. Again, much of the language used here can be seen in any number of defensive motions filed in capital punishment matters across the state today.

1. Thipental Sodium - the First Drug to be Administered

Thiopental sodium is the first drug to be administered during an execution by lethal injection in Florida. As a general anesthetic, thiopental sodium poses special risks because it is so short-lasting that for any number of reasons it can cease to operate as sufficient anesthesia long before the other drugs cause the death of the condemned.[1] Think about that.

It stops working within minutes.

In an affidavit submitted during litigation in Tennessee, Dr. Dennis Geiser, the chairman of the Department of Large Animal Clinical Sciences at the College of Veterinary Medicine at the University of Tennessee, swore under oath that:

the dosage of thiopental sodium must be measured with some degree of precision, and the administration of the proper amount of the dosage will depend on the concentration of the drug and the size and condition of the subject. Additionally, the drug must be administered properly so that the full amount of the dosage will directly enter the subject's blood stream at the proper rate. If the dosage is not correct, or if the drug is not properly administered, then it will not adequately anaesthetize the subject, and the subject may experience the untoward effects of the neuromuscular blocking agent . [Further], under Thiopental Sodium the anesthetic effect is extremely short-lived, and will be effective for surgical restraint and anesthesia for a period of only five to seven minutes.

Affidavit of Dr. Dennis Geiser, in the case of Abu-Ali Abdul Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000), cert. granted on other grounds, 535 U.S. 1016, cert dismissed as improvidently granted, 537 U.S. 88 (2002), on remand on other grounds, ___F.3d___, 2004 WL 2847749 (6th Cir. Dec. 13, 2004) (en banc) (emphasis supplied).

It actually heightens sensitivity to pain.

Drug manufacturers warn that without careful medical supervision of dosage and administration, barbiturates like thiopental sodium can cause paradoxical excitement and can actually heighten sensitivity to pain. See Physicians Desk Reference, 50th Ed. 1996 at 438-440. Manufacturers warn against administration by intravenous injection (hereinafter AIV) unless a patient is unconscious or otherwise incapacitated. Id. Thus, there are serious problems with the first drug, the anesthetic, actually operating to anesthetize the person being executed sufficiently or for long enough to prevent suffering caused by the subsequent two drugs. Denno, supra, at 95-98.

2. Pancuronium Bromide - The Second Drug to be Administered

The second chemical involved in the lethal injection process, pancuronium bromide, or Pavulon, is also constitutionally problematic under existing law. A derivative of curare, it operates to suppress any muscular movement, including breathing, in the condemned, but does not anesthetize him or affect his consciousness in any way.

It Keeps the Inmate Still While He Dies - But It Doesn't Stop His Pain, It Only Paralyzes Him

According to recent scholarship, it is completely unnecessary to causing the condemned's death, and serves only to make the execution seem more palatable to the other participants and witnesses when the other drugs have their effects, which can include spasm, twitching and other movements of the voluntary muscles:

[P]ancuronium bromide serves no real purpose other than to keep the inmate still while potassium chloride kills. Therefore, pancuronium bromide creates the serene appearance that witnesses often describe of a lethal injection execution, because the inmate is totally paralyzed. The calm scene that this paralysis ensures, despite the fact that the inmate may be conscious and suffering, is only one of the many controversial aspects of this drug combination. Denno, supra, at 100 (footnotes omitted).

It is Illegal to Use Pancuronium Bromide When Euthanizing Animals

Because it prevents muscular activity, including that associated with breathing, but does not render the subject unconsciousness or cause immediate death, the use of pancuronium bromide B or any other neuromuscular blocking agent -- to euthanize animals is absolutely condemned by the American Veterinary Medical Association. 2000 Report of the AMVA Panel on Euthanasia, Journal of AVMA, March 1, 2001 at 681.

Some states, including Tennessee, have legislatively banned the use of Pavulon as a means of euthanizing non-livestock animals precisely because it causes torture and suffering in the subject. See Tenn. Code Ann. '44-17-3038), '39-14-201. While Pavulon paralyzes skeletal muscles, including the diaphragm, it has no effect on consciousness or the perception of pain or suffering. The effect of the administration of Pavulon is characterized to an insufficiently anesthetized person as like being tied to a tree, having darts thrown at you, and feeling the pain without any ability to respond. See paragraph 8, supra.

"Anesthesia Awareness"--a Chemical Straightjacket and Gag

This is known as anesthesia awareness, a phenomenon which has been documented during surgical operations performed by qualified anesthesiologists and surgeons. Anesthesia awareness occurs when the patient has not been properly anaesthetized, as is no doubt happening with the use of Pentothal in the lethal injection process. Not being anesthetized means that the condemned will be conscious of being paralyzed and of being poisoned, but will be powerless to demonstrate his distress.
Pavulon in the lethal injection protocol serves no purpose other than to guarantee that the condemned inmate will be forced into a chemical straightjacket with and gag while he consciously experiences the potassium chloride ravaging his internal organs. Persons viewing the lethal injection procedure and the public will never realize that a cruel fraud is being perpetrated upon them: instead of witnessing an inmate quiet and motionless while being put to sleep, they are in fact witnessing the cover-up of a deliberate act of excruciating torture for which only the inmate is fully conscious. See Denno, supra, at 100.

3. Potassium Chloride - The Third Drug to be Administered

Finally, the use of the third drug -- the actual killing agent potassium chloride -- also raises important constitutional concerns. According to Dr. James J. Ramsey, a certified perfusionist and currently the Program Director in the Program in Cardiovascular Perfusion at Vanderbilt Medical Center, Nashville, Tennessee, the adequacy of the potassium chloride to cause death by stopping the heart is in question. [2]

The Inmate Suffocates - The Lethal Injection Does Not Just Peacefully Stop the Heart

Dr Ramsey has stated:

AIt is my understanding that during the performance of lethal injection as carried out during the death penalty, potassium (and other agents) are administered intravenously to the defendant. Such administration is, in my professional opinion based upon my knowledge, training, and experience, and within a reasonable degree of medical certainty, entirely inadequate in order to achieve reasonable cardiac standstill. Since the agents are introduced intravenously, there will occur an immediate dilution of the solution, weakening any potential effect it may have. By illustration an 80 kilogram person would have a blood volume of approximately 5.5 to 6 liters. An administration of 100 milli-equivalents of potassium intravenously to the 80 kilogram person would result in a blood concentration of only 16.6 meq/L. Such a dose is according to scientific literatureY and as evidenced in my practice, inadequate to achieve cardiac standstill.

Furthermore, it must be remembered that [in contrast to the administration of potassium chloride in the surgical context] such administration is: (1) not directed into the coronary arteries; (2) directed only in an antegrade fashion; and (3) is at mormothermia (37 degrees Celsius, not at five degrees Celsius). Without reasonable data regarding any one person=s anatomic and pathologic state as to their myocardial function prior to administration of the potassium, there can be no reasonable certainty that the potassium solution intended to arrest the heart would be distributed in a fashion that would arrest the heart. Thus, the very orchestrated and methodical methods used in surgery should not be thought of as optimizing the arrest of the heart, but should be considered to be necessary as the only reasonable means of ensuring that the heart is arrested. If the heart could be arrested by intravenous objections, cardiac surgery today would be a very different animal- science and research tell us that mere intravenous injection of potassium is not sufficient.

* * *

Additionally, in my professional opinion and within a reasonable degree of medical certainty, barring an effective cardiac arrest, it is entirely possible that a lethal injection as I understand it will serve only to arrest the function of the pulmonary system, thereby causing a state of ischemia to the entire body (no oxygen delivery), which, in turn, will ultimately arrest the heart as well (with no oxygen delivery to it.) As a result, the defendant is simply suffocated due to lack of oxygen.

Next week, in part three of the series, the series concludes with a discussion of why Florida's method of execution is unconstitutional and wrong.

[1] Sodium thiopental, an ultra-short acting drug . . . typically wears off very quickly; other similar drugs, such as pentobarbital, endure far longer. The fast acting aspect of sodium thiopental can have horrifying effects if the inmate awakens while being administered the other two drugs. . . Most importantly, it is totally unnecessary for the barbiturate to be fast acting, given the availability of longer acting chemicals. Denno, supra, at 98 (footnotes omitted).
[2] Perfusion involves the study of medicine related to the artificial circulation technologies, including but not limited to the operation of the heart-lung machine, a medical device commonly used during open-heart surgeries of all kinds. The arena involving the chemical arrest of the heart lies uniquely within the practice of the clinical perfusionist.

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Darla - May 16, 2009 9:37 AM

Why should it be a concern if they suffer??? Their victims sure didn't get a choice and I feel sure they suffered greatly when their lives were taken. In my opinion lethal injection is WAY TO humane. The perp should die the same way their innocent victim died.

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