Monday, February 7, 2011

No Plan B - Now with a title (Sorry about that)

You have no Plan B.
That's a paraphrase of something our expert said from the witness stand in a lethal injection case I was trying.  It was a few years ago, and at the time, Ohio's system worked like this (I'm omitting lots of detail):
  1. Put shunts in guy's arms.
  2. Pump thiopental.
  3. Pump pancuronium bromide.
  4. Pump potassium chloride.
  5. Have body carted away.
What Ohio didn't have was a fallback position, a backup, a Plan B.  What if they couldn't get the shunts in?  What if it was clear that the drugs wouldn't pump?  What if?
All you'd find in the protocol in those days was amounted to,
We'll try to figure something out.
Which isn't really much of a plan.
Since that time, Ohio has
  • Been unable to get the shunts in Rommell Broom's arms (or legs or feet or . . . ) and called a halt to his murder.
  • Come up with a new protocol that included a Plan B using a never-before-tried murder system involving intra-muscular injection of a couple of drugs.
  • Switched from the three-drug sequence to a single dose of thiopental.
  • Announced that beginning with the second murder of this year it will switch from a single dose of thiopental to a single dose of pentobarbital.
We here in the Buckeye State change execution protocols as frequently as some people change their sheets.  The goal is killing, and we will find a way.
Other states, though, are less agile.
Take Nevada.
They have 82 people on death row in the Sagebrush State.  None has an execution date, or at least not a realistic one.  But the Sagebrush sages are taking no chances.  They don't move as nimbly as Ohio, so they're trying to plan ahead.
See, Nevada has no thiopental.  And as we've seen, it's getting harder to get hold of it.  Hospira won't make more.  Britain will no longer let Dream Pharma export it from the driving school.

Italy forbids export if it ends up as an execution drug.  Germany forbids export for killing.  Oklahoma replaced thiopental in its series of drugs with pentobarbital, but nobody really knows how that works.  From Politiken.
Harvard, Berkely and Fordham experts are criticising the use of a Danish anaesthetic in executions.
American death row prisoners risk extreme pain during their executions as a result of an anaesthetic produced by the Danish company Lundbeck, according to several US experts..
“Gruesome, painful, horrible,” says Harvard Anaesthestist and Medical Professor David Waisel.
Two states – Ohio and Oklahoma – have begun using pentobarbital for executions as stocks of a previous anaesthetic have run out, and the company that previously produced the anaesthetic used has decided to stop production.
“There is no documentation that this substance can be used to anaesthetise people like this. We don’t know the correct dose. Prisoners are not treated like human beings but like animals,” Waisel says. 
As I noted a week and a half ago, Lundbeck is flat-out hostile. According to it's VP for communication, Sally Benjamin Young, the company sent a protest letter to Ohio's DRC.  She wouldn't release the letter itself.
However, Young said the company told state prison officials that it is "adamantly opposed" to the use of its product, sold under the trade name Nembutal, for capital punishment. "We urged them to discontinue using it for this purpose.
"Lundbeck is dedicated to saving people's lives," Young said. "Use of our products to end lives contradicts everything we're in business to do."
Prisons spokesman Carlo LoParo said the state will not heed the company's warning and will use the new drug as planned.
But I'm getting distracted.  This is about Nevada and what they're going to do if they ever get around to killing one of the 82 folks on their death row.
No thiopental.  No Plan B.
Martha Bellisle in the Reno Gazette-Journal sets out Nevada's problem.
The Department of Corrections would need 5 grams of the drug to execute a prisoner, according to its lethal injection protocol, but it "does not maintain a supply of the drug," so none is available, said Kevin Ingram, department spokesman.
"The Nevada Department of Corrections has been working with the office of the attorney general in revising the Execution Manual," Ingram said. "Due to the limited supply of the execution drug used in the past, the drug protocol is being reviewed as well.
"No final decisions have been made by the Office of the Attorney general at this time."
So Nevada wants help.
In response, Nevada Attorney General Catherine Cortez Masto joined 11 other attorney generals recently in asking U.S. Attorney General Eric Holder for help in either finding new sources for sodium thiopental or making the federal government's sources available to the states.
Well sure.  If we can't kill, let's blame it on the Obama administration.  Or get them to fix it.
There's no reason to think the feds have a stockpile of thiopental.
The last of the thiopental from Hospira has an expiration date of March 2011.  And then what happens?  Does it lose potency?  How fast?  Will it just stop working?  Will it have some other effect?  Nobody seems to know.
And, of course, there's no indication that Nevada, or any of the 11 other states, really cares.
Debby Denno, law professor at Fordham and an expert on execution technology and the law says that the firing squad is the best, most humane way for the state to murder people.  But nobody in this country does that any more.  (Utah carved out a special exception for the killing of Ronnie Lee Gardner.)  I'm not at all convinced that the cosmeticization of death, the pius, posturing faux decency of a "humane" execution makes any sense.
If the goal is retribution, then there should be some sort of equivalence.  If the goal is deterrence, then there should be maximum pain.  I wrote this back in 2009.
Either we give up state murder, acknowledge once and for all that the death penalty, no matter how cosmetically attractive we try to make it is just another killing, unnecessary, unfair, uncertain. Or we embrace the horror, admit that we torture people to death at least some of the time and acknowledge that we're just fine with it.

We can rent out Yankee Stadium (it's new and shiny) and line the bodies up. We can set lions on them. Or have them gnawed to death by rats. Pay per view. It's better than pro wrestling.
I still think there's something to it.  If we're gonna do it.
I really don't doubt that people would line up to loose the rats.  The stadium would sell out.  Pay-per-view would set ratings records.  Yet we haven't the stomach for it.  It's not just the Cruel and Unusual Punishment Clause.  It's that however bloodthirsty we may be individually, or at least however bloodthirsty some individuals are, as a society we think we're better than that.
So we're not willing (that "we" is, again, the societal one) to wallow in what we're doing.  We must kill humanely.  Clinically.  Peacefully.  In a suitable 21st Century style.  Behind closed doors.  So that we can deny the reality that it's murder.
Most foul.

From Hamlet, Prince Hamlet meets the ghost of his dead father. 

  Ham.  Where wilt thou lead me? Speak, I’ll go no further.
  Ghost.  Mark me.
  Ham.        I will.
  Ghost.        My hour is almost come,        4
When I to sulphurous and tormenting flames
Must render up myself.
  Ham.        Alas, poor ghost!
  Ghost.  Pity me not, but lend thy serious hearing        8
To what I shall unfold.
  Ham.        Speak; I am bound to hear.
  Ghost.  So art thou to revenge, when thou shalt hear.
  Ham.  What?        12
  Ghost.  I am thy father’s spirit,
Doom’d for a certain term to walk the night,
And for the day confin’d to fast in fires,
Till the foul crimes done in my days of nature        16
Are burnt and purg’d away. But that I am forbid
To tell the secrets of my prison-house,
I could a tale unfold whose lightest word
Would harrow up thy soul, freeze thy young blood,        20
Make thy two eyes, like stars, start from their spheres,
Thy knotty and combined locks to part
And each particular hair to stand on end,
Like quills upon the fretful porpentine. 1        24
But this eternal blazon 2 must not be
To ears of flesh and blood. List, Hamlet, O, list!
If thou didst ever thy dear father love—
  Ham.  O God!        28
  Ghost.  Revenge his foul and most unnatural murder.
  Ham.  Murder!
  Ghost.  Murder most foul, as in the best it is,
But this most foul, strange, and unnatural.        32
  Ham.  Haste me to know ’t, that I, with wings as swift
As meditation or the thoughts of love,
May sweep to my revenge.


  1. I'm sure you know this already, but I've been studying the history of the death penalty a little, and it appears that since almost everyone with medical skills has refused to help, it means that the people who plan, supervise, and perform executions are no more qualified than your or I, and they do their killing without advice or training from a doctor. There's a long history of very predictable incompetence.

  2. Debby Denno, law professor at Fordham and an expert on execution technology and the law says that the firing squad is the best, most humane way for the state to murder people.

    I feel vindicated. I've been telling you that the firing squad is the way to go, and you've given me all the attention I've come to expect from a phone booth.

    As Windypundit points out, virtually everyone with medical skills refuses to help the State execute a criminal. This is the way things should be. Who wants Doctor Kevorkian treating their insomnia? The thing is that the State is revealing its incompetence yet again, which shouldn't surprise anyone. The State should not be consulting a profession concerned with saving life; the State should consult with a group of people whose job is to kill people. We have the largest standing army on the face of the planet. Consult with a special forces team and find the most effective way to kill someone quickly, and you'll have your humane execution method.

    I think this is sufficient evidence that the State lacks competence. So just how is it that a State government that is so incompetent it cannot devise a certain, humane execution method and cannot find the necessary experts to consult with even though these experts are literally a phone call away - how is it that these are the people who get to decide who lives or dies?

  3. In fact, plenty of MDs are willing to help. There are ethical issues, of course (first do no harm, and all that), and some licensing problems. Still some MDs are willing - or more than. We recently learned that during the Rommell Broom fiasco in Ohio, a doctor came in to try for veinous access, but he couldn't do it, either. Which suggests something, but I won't go there.

    The general point is right, though. We've got a bunch of people who don't know what they're doing and have insufficient training doing this. It's hardly a wonder that it's often done incompetently.

    As for the firing squad, I haven't said anything about its merits until now because, frankly, I didn't have anything much to say. But Denno's been saying for years that it's the winner in terms of simple humaneness despite an unwillingness of government to adopt it.

  4. I'll go there: The doctor was probably incompetent with patients. The one doctor I've stumbled across who did executions had multiple complaints against him.

    Mad Jack mentioned Dr. Kevorkian. However you feel about assisted suicide, don't forget that Kevorkian was pathologist. He never treated a living patient in his career until he started killing them. Similarly, the current 3-drug protocol was invented by a medical examiner, also a specialty not associated with the healing arts.

    I'm sure there could be a fine upstanding doctor who helps with executions on the ethical theory that if it's going to be done anyway, it should be done as skillfully and humanely as possible (an argument that is not without some merit) but I haven't run across him in my admittedly limited reading.

  5. I don't know about the MD who helped out (albeit unsuccessfully) in Broom. I do know of the doc I think you're referring to: The dyslexic MD in Missouri, denied hospital privileges all over the place, who signed on to help with federal executions after Missouri (apparently) cut him loose. So I think your basic point is right.

    I do know competent MDs who have told me they would help for just the reason you suggest if it weren't forbidden either by oath or local rule. But they (at least the ones I've talked to) aren't actually helping kill.

    So, yeah.

  6. But they (at least the ones I've talked to) aren't actually helping kill.

    Too thin, Jeff, too thin. If I load the gun and show Ernie the Executioner how to use it, I've helped in the execution. Consider the case of Daddy and Momma. Daddy love Momma, Momma loved men. I helped the drunken idiot get the bullets in his .357 Smith. Now that Momma's in the graveyard and Daddy's in the pen, am I an accessory? Even I know the answer to this one, and I'm not a lawyer.

    On a more serious note, I've found many MDs to be fairly callous people which surprised me. I'd think they be the opposite. So I guess I'm not surprised that some would be willing to help out at an execution - I just wouldn't want any of them working on me.

    As for Doctor Death being a Pathologist, I contend that he's still a doctor. I wouldn't want him treating me or my friends or family. For more reasons than one.

  7. Sure, and there are MDs who do that. The leading expert for the government in all the lethal injections litigation is an anesthesiologist in Massachusetts, Mark Dershwitz. He not only says that what they're doing has a vanishingly small risk of causing pain, he's also helped them design and redesign their protocols.

    The docs I was referring to, and there are only a couple, the ones I've actually chatted about this stuff with (rather than, like Dershwitz, had on the witness stand) have had no involvement in the process. They don't give guidance or advice. In fact, they won't. But they've told me that if it were acceptable, they'd do the execution to ensure that it would be painless. They don't have any involvement, and they oppose executions, but they'd do it anyway IF.

    As for callous, remember that a whole bunch of psychiatrists were involved in figuring out how to torture the prisoners at Gitmo. And, of course, Mengele was a doctor, too.