by Craig Klugman, Ph.D.
This week the state of Arkansas had planned to execute 8 death-row inmates in 4, back-to-back killings using lethal injection over 10 days. The last execution in Arkansas was 12 years ago, so why the sudden rush? As part of the three-drug cocktail used by this state, their supply of midazolam—an anesthetic—is about to expire. If they do not use the drug by the expiration date, then they can’t use it and the company that makes the drug will not sell it to the state for this purpose.
Arkansas had planned to use a combination of 3 drugs in the execution, midazolam (an anesthetic), vecuronium bromide (a paralytic), potassium chloride (to stop the heart). This cocktail would be used to kill the 8 men.
I say “had planned” because last week, two of the prisoners had judges issue stays on their executions. This move is not unusual as there is often a flurry of court appeals and filings in the time before an execution. What is unusual is that over the weekend, another judge placed a stay on all executions on the request of drug companies and distributors—Pfizer, Fresenius, West-Ward Pharmaceuticals, and McKesson—who do not want their drugs to be used in an execution. McKesson’s concern is that when they learned the reason the state bought the vecuronium bromide, that they refunded the cost and asked for the drug to be returned. Drug manufacturers and distributors have come out against their products being used to kill prisoners. The association is unlikely to be good for sales or brand reputation.
The timing of these cases is oddly serendipitous. On Wednesday, I am a part of a panel on “The Ethics of Execution,” alongside Sister Helen Prejean, the author of “Dead Man Walking” (Wednesday, 6pm at DePaul Student Center). Thus, I have been thinking about what a bioethics perspective on this issue might reveal.
There are several concerning facts in this case: (1) Other states that have used midazolam have had problems with “botched” executions that caused much pain and suffering in prisoners; (2) No one involved with the Arkansas executions has any experience running executions, never mind so many in such a short time; and (3) the last time a state (Oklahoma) tried to have a single back-to-back execution, the second killing was “botched” and led the state to recommend avoiding such scheduling.
The number of executions has been decreasing nationwide over the last 20 years. In 2016, 20 people were executed, the lowest rate in 25 years. Among the reasons are “challenges based on DNA evidence, litigation over the drugs used in executions and increased use of life without parole as a sentencing option.” Four percent of death row inmates are innocent. Thirty-one states have a death penalty, 19 do not (7 of those abolished it since 2000), and 4 have governor-impose moratoria (all since 20011). Not surprisingly, blue states tend to not have the death penalty (except for California and Nevada) and red states tend to have it (except for New Hampshire). More than two-thirds of all nations do not have the death penalty in law or practice. The U.S. is the only high income country that has executions and is among the top 5 nations in terms of number of executions performed.
The arguments both for and against execution are not new. On the pro side, (1) heinous crimes deserve the most egregious punishment, (2) the victim’s family deserves justice (i.e. vengeance), (3) the high dollar cost is related to the legal process not to the actual carrying out of an execution, (4) tradition follows that Western justice is based on “an eye for an eye,” (5) deters others from committing capital crimes.
On the con side, (1) the death of even a single innocent person outweighs any potential good, (2) it is a cruel and unusual punishment (if we believed otherwise, then we would not be constantly trying to create more humane and painless ways to kill prisoners), (3) there is no data that supports a connection between executions and murders, (4) two wrongs do not make a right, (5) the process costs more money than life in prison, (6) rather than focusing on vengeance, we should focus on reform, (7) race, income, and quality of an attorney can affect one receiving the death penalty.
In the world of bioethics, one of the main concerns is the involvement of health care providers in executions. On the one side, health care providers are necessary to determine death as only they have the skills necessary to deliver the medications, and to ensure that the least suffering occurs. My experience stems from 2006 when I asked to speak about a court ruling in California that physicians had to be present at an execution. The rub was that being a state that encodes into law the AMA code of ethics, physician participation was technically illegal and certainly grounds for having a license revoked. The court requirement could not legally be fulfilled. The AMA clearly states that physicians should not participate in executions in that role (i.e. giving a drug meant to kill or inserting the IV meant to kill). Although no one takes the Hippocratic Oath today, it is a guiding document for medical ethics. The Oath seems to argue against doctors being involved with killing, but the wording is actually more about giving a killing agent to someone who requests it: “I will neither give a deadly drug to anybody who asked for it, not will I make a suggestion to this effect.”
If lethal injection and health care provider involvement is problematic, then states could choose other methods of execution. For example, Utah still uses the firing squad. The Supreme Court ruled that only lethal injection does not violate cruel and unusual punishment. Another option would be to use different drugs, except to note that the drugs Arkansas proposed using are the alternative drugs since there are shortages of the original medications and their manufacturers have not support their use in executions.
What is a question and problem of criminal justice has been medicalized by the courts and the states. If we look at capital punishment as a medical issue, then a bioethics lens makes sense. From a bioethics perspective, taking a person’s life without their consent is unacceptable. There is strong debate over whether taking a person’s life with their consent (aid-in-dying) is acceptable and over whether physicians should be involved at all with taking lives whether voluntary or involuntary. This is a modern bioethics interpretation as both Kant, Aquinas and Mill were supporters of capital punishment.
In bioethics, we have paid little attention to issues of social justice. Execution is a social justice issue. When you consider the role that bioethics could play in advocacy, then this is an issue upon which we should all be speaking.
Arkansas has filed to vacate the temporary injunction placed against all of the executions. In the meantime, the state is proceeding with preparations for the executions to take place.