Steven K. Erickson, JD, LLM, PhD
Department of Psychiatry
Michelle L. Erickson, MD, MBA
Department of Pathology and Laboratory Medicine
As mentioned previously, the open-access journal PLoS Medicine has an article claiming that current lethal injection protocols are problematic and audaciously calls for the abolition of the death penalty despite the authors declaimer that “our study is necessarily limited in scope and interpretation.” That limitation, of course, does not bar the authors and the editorial commentary from suggesting that lethal injection violates the Eighth Amendment’s ban against cruel and unusual punishment. Rightly or wrongly, what constitutes cruel punishment under the Constitution seems to be an evolving matter of legal interpretation. As such, getting the science right seems all the more important since the courts often turn to science to inform them of empirical matters when forming their interpretations. This, of course, presents problems since science is inherently exponential: we know more every day and what is thought as scientific fact today may be tomorrow’s scientific fad. Nonetheless, the authors of the PLoS article have raised some vital questions about the lethal injection protocols in several states that is worth commenting on.
First and foremost, there is the implicit assumption that since the current lethal injection protocols do not produce a very quick death the procedure must be painful. Yet, there is no evidence to support this fact and a mountain of evidence to suggest otherwise. Administration of 5 grams of thiopental almost certainly results in a loss of consciousness so profound that sensory perception is nil. If it is a painless death that is the object of the movement away from other execution protocols towards lethal injection than why not use 20 grams of thiopental? Because it isn’t necessary – 5 grams will produce death together with the other lethal injection drugs eventually. Of course, that’s not what the scientists in the PLoS article conclude; rather their answer is prohibition of the death penalty as their competing interests disclaimer clearly demonstrates.
The authors may be right when they imply that little scientific thinking has gone into the lethal injection protocols and that “no ethical or oversight groups” have had input into the protocols. However, they fail to mention that in large measure the reason for this is that medical doctors in the United States face severe sanctions from various professional groups including the American Medical Association if they were to participate in such studies. The ethicists have already declared for the whole profession that engaging in such research is an affront to the ethical cannons of medicine and science. Thus, we’re left with protocols designed, in all likelihood, by doctors and scientists on the fringe of their professions (who likely are underpaid) and wonder why lethal injection executions don’t occur seamlessly. But we can’t have it both ways: we can’t assail the imperfect science of lethal injections and at the same time keep the heavy hand of professional disciplinary action and disgrace over the heads of scientists who could improve the protocol.
Finally, if a quick and painless death is the aim of the death penalty protocols, science can surely provide. There’s a large of armatarium of drugs and devices that can produce immediate death with little or no pain. But, death penalty litigation and commentary doesn’t seem really interested in that question. Instead, there are two, immutable sides: those who support the death penalty and those who oppose it. Both sides have good and thoughtful arguments, but it’s a sad day when science becomes so enmeshed with politics as it so obviously is in the PLoS article. Of course, when you pay $2,500 to have your article published, you probably feel entitled to add political commentary.