Do death row inmates have the right to know origins of lethal injection drugs?

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    A Texas inmate is scheduled for execution tonight, the second this week, and the sixth this year to die by lethal injection.

    But, even as the number of executions has declined in the 32 states where the death penalty is legal, the manner in which inmates are put to death is now under scrutiny.

    That's because the practice of lethal injection itself has grown more complicated. Supplies of the needed drugs have dwindled, in part because European manufacturers have been banned from exporting them to states that intend to use them in executions.

    The scramble to replace those drugs with others manufactured here has delayed some executions and thrown others into court, as inmates and their lawyers question whether the new approach will result in a cruel or unusual death.

    For more on this issue, we turn to Megan McCracken with the U.C. Berkeley School of Law's Death Penalty Clinic, and Dr. Joel Zivot of Emory University Hospital.

    Megan McCracken, is the root of this question a shortage of the drugs or the availability of these drugs?

    MEGAN MCCRACKEN, University of California, Berkeley: It's about the availability of the drugs.

    There is no shortage of the drugs. Rather, the pharmaceutical companies have made the decision that they don't want their names and their products used in executions, so they have set up restricted distribution, so that departments of corrections cannot get their drugs for the purposes of execution. But the drugs remain fully available, widely available for clinical use in hospitals and clinics, so that patients who need them can still get them.


    Well, let me ask you a little bit more. Which drugs are we talking about? Let's just walk us through them.


    Primarily, we're talking about pentobarbital. The brand name drug is Nembutal. And the pharmaceutical company that manufactures and markets Nembutal decided they didn't want that product used in executions, and so they restricted distribution so that it's not available to departments of corrections for that purpose.


    Dr. Zivot, from a medical perspective, what kind of problem does this present?

  • DR. JOEL ZIVOT, Emory University:

    Well, from a medical perspective, I need to be clear that the lethal injection is not a medical act.

    So, if you're asking me what is the role of the utilization of these drugs and how does it affect my practice, well, pentobarbital is not a commonly used medication in medical practice, although it's an important one and has a particular use, which is related to the treatment of seizures.

    Other medications, though, that are being used in lethal injection are medications that I require, that I require to care for patients. And if I have to be competing, so to speak, with the Department of Corrections over who gets certain kinds of medications, well, that creates a certain kind of unusual circumstance, where a medication that really is intended to heal is now in fact used to kill.


    Part of the problem, part of the questions that are being raised, Doctor, also have to do with whether these are effective for what they are designed to do, even if they are designed to kill, and whether in fact some of these inmates are suffering more than they ought to.

    Is there any way to measure that?


    Well, I think that you have really come down to where the problem is.

    And, first of all, I want to say, too, that none of these medications — and I'm going to call them that for now because that's how I think of them — are ever designed to kill. These things are used now and are repurposed for the purpose of killing by the department of corrections, but not because that's the intention of the manufacturer.

    I don't think any manufacturer of a drug, a pharmaceutical drug, makes something that's used specifically to kill. I think that the — and the problem is, is that the standards that these compounds are used in the circumstance of treatment, that is to say, when a drug is made under a certain degree of purity, which is required, if it's given to a patient, well, that's not the same thing as making a compound that's going to be given for execution.

    I don't know what rules those are. I'm not sure how to measure that. I don't — I understand that there's some concern as trying to compare these two together, but there is a problem there in trying to use the same language in this debate here.


    Let me ask Megan McCracken about it, because one of the reasons why there are no medical personnel involved in these executions is because of the questions that Dr. Zivot was just raising.

    But as you look at this and as you assess whether this is — these are — this is an effective method to carry out the law, is it effective?


    Well, actually, I would say first that there are medical professionals participating in executions to varying degrees all across the country.

    There are EMTs, there are nurses, and there are doctors participating as members of execution teams, but, again, in differing capacities all across the country.

    In terms of the effectiveness, I mean, I think there's two questions at play there. One is, does death occur? Do the drugs bring about death? And I think for the most part, the answer is yes. The underlying question, however, is do the drugs bring about death in compliance with the Constitution, you know, with a — as minimal of pain and suffering and risk of pain and suffering as possible?

    And there, there are a lot of questions. A lot of execution procedures still rely on a paralytic drug. And once the prisoner has been paralyzed, there's no way to tell if the prisoner is suffering, is conscious, and is unable to breathe. A lot of risks come into play in these procedures that paralyze prisoners.


    I'm sorry..

    I wanted to ask you another question about this, because a lot the argument also seems to come down to whether inmates know what kind of drugs are being used, and that's what's being challenged. That's what's been going to the Supreme Court, whether states can keep that kind of thing secret.


    That is — right. That is a very big issue right now.

    A lot of states are trying to keep the sourcing of their drugs, which in the end gets down to what are these drugs, they're trying to keep that information secret. A lot of states have turned to compounded drugs, compounding pharmacies, which mix specialty batches of drugs.

    And they are — the states are refusing to turn over the information of where these drugs are coming from. And it's very crucial information, because, especially with a compounded product, the prisoner, the prisoner's lawyers and the courts need to know, was this compounding pharmacy licensed to make a sterile injectable? Are they in fact able to make a sterile injectable? Where are the raw ingredients coming from?

    Are these raw ingredients that come from factories that are known within the U.S., or are they coming off of the gray or black market, and that product is a complete unknown? And so questions of the purity, the potency, the pH balance, whether or not a product is contaminated, that all comes into play. And if the states are able to hide that information and refuse to turn it over, the courts are prevented from carrying out a constitutional analysis of the procedures, and they are prevented from determining if the procedures comport with the law.


    The Supreme Court of course turned away a case that made — that was making that case this past week.

    Dr. Zivot, I do want to ask you whether the secrecy issue, the transparency issue is an important one in this.


    Well, again, I want to emphasize that lethal injection is not a medical act.

    Now, it's created to appear to be such, and I think that that's not unintentional. I do — I am concerned by the appearance here, because the reality is far from the appearance. If — because an inmate is not a patient and an executioner is not a doctor, it's — I can't make a direct comparison.

    I will say that if I, as a physician, am caring for a patient and I am taking a medication and injecting it into them, then of course there is an understanding and a guarantee, if you will, that the quality of the medication, the potency of the medication is specific for the intended purpose.

    With respect to what is happening here, I think to Megan's point, these compounds can be many things. Now, it's hard not to see the irony here, I suppose, as to what would happen if the drug failed to be effective, that is to say, it would fail to cause death. Normally, when drugs cause death, we say that is a — would be the unintended consequence and not the intended one.

    So — and I would agree with Megan that if an inmate ultimately dies, then I suppose, to a certain degree, you know the drug was effective. I think that the problem is, is that what happens between the beginning of the injection of the drug and death is entirely uncertain.


    The way lethal injection is conducted now, and with the mixing of medications and the lack of observation and the lack of the revealing of evidence in any part of this, it's really difficult to try to look at this scientifically. So, what it really is, is it's something else.


    Pardon me. I'm sorry. We're just running out of time.

    That is the uncertainty that is at the root of this whole debate.

    Dr. Joel Zivot of Emory University Hospital, and Megan McCracken of U.C. Berkeley, thank you so much.

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