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Fordham University School Od Law Denno Mcgavney Research Paper the Lethal Injection Quandary How Medicine Has Dismantled the Death Penalty 2007

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Fordham University
School of Law

May 2007


This paper can be downloaded without charge
from the Social Science Research Network electronic library:

Deborah W. Denno*
On February 14, 2006, a federal district court rendered a ruling1 that would transform this
country’s views of capital punishment.2 For California to conduct the lethal injection execution
of Michael Morales, the state had to choose one of two court-mandated options: provide
qualified medical personnel who would ensure Morales was unconscious during the procedure,
or alter the Department of Corrections’ execution protocol so that only one kind of drug would
be given, rather than the standard sequence of three different drugs.3 Evidence suggested that, of
the eleven inmates lethally injected in California, six may have been conscious and tormented by
the three-drug regimen,4 potentially creating an “‘unnecessary risk of unconstitutional pain or
suffering’” in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause.5 In
a captivating legal moment, the state chose to have medical experts present at Morales’
execution, setting the stage for a showdown between law and medicine.6
Immediately, medical societies protested the Morales court’s recommendation and the
ethical quandaries it posed.7 Three stalwart groups – the American Medical Association,8 the


Arthur A. McGivney Professor of Law, Fordham University School of Law. B.A., University of Virginia; M.A. University of
Toronto; Ph.D., J.D., University of Pennsylvania. I am most grateful to the following individuals for their contributions to this
article: Daniel Auld, Edward Brunner, M.D., A. Jay Chapman, M.D., Eric Columbus, Lawrence Egbert, M.D., Watt Espy, Mark
Heath, M.D., and Ellyde Roko. I give special thanks to Daniel Auld and Ellyde Roko for their superb efforts in collecting and
analyzing the information on lethal injection protocols. Numerous prison officials and administrators throughout the country
graciously provided their time and resources to describe the execution protocols and procedures that this article discusses. The
names and affiliations of these individuals are listed in this article’s Appendix.
See Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006), aff’d per curiam, 438 F.3d 926 (9th Cir. 2006), cert. denied,
126 S. Ct. 1314 (2006).
See infra Part IV.
Morales, 415 F. Supp. 2d at 1047; see also Morales v. Hickman, Final Order Re: Defendants’ Compliance With Conditions;
Order Denying Plaintiff’s Motions for Discovery of Information and for Reconsideration 1, 2 (N.D. Cal. Feb. 16, 2006) (giving
mention to anesthesiologists specifically).
Morales, 415 F. Supp. 2d at 1045. The Morales court refers to execution problems “in at least six out of thirteen executions by
lethal injection in California. . . . ” Id. However, two of those thirteen executions were conducted by lethal gas, not by lethal
injection. See Morales v. Tilton, 465 F. Supp.2d 972, 975 n.3 (N.D. Cal. 2006) (“In fact, there have been only eleven executions
by lethal injection in California.”).
Morales, 415 F. Supp. at 1039 (citation omitted). The Eighth Amendment provides that “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend VIII.
Morales v. Hickman, Final Order Re: Defendants’ Compliance With Conditions; Order Denying Plaintiff’s Motions for
Discovery of Information and for Reconsideration 1, 2 (N.D. Cal. Feb. 16, 2006).
Atul Gawande, When Law and Ethics Collide – Why Physicians Participate in Executions, 354 N. Engl. J. Med. 1221, 1221
(2006). A key ethical aspect of this topic is to what extent lethal injection constitutes a “medical procedure,” and violates the
Hippocratic Oath to which medical students swear upon graduation. See Louis Lasagna, The Hippocratic Oath-Modern Version
(1964), available at .
See Priscilla Ray, Chair, Am. Med. Ass’n. Council on Ethical and Judicial Affairs, AMA Opposes Physician Involvement in
Executions, Feb. 17, 2006, (last visited Mar. 9, 2007). The press release
reiterated the AMA’s opposition to doctor participation in lethal injections and criticized the ruling of Judge Fogel in the Morales
case. See id.

American Society of Anesthesiologists,9 and the California Medical Association10 – united in
their opposition to doctors joining executioners. Even bigger surprises from Morales were yet to
come. It took just one day for prison officials to find two anesthesiologists willing to take part
in Morales’ execution, assured that they would remain anonymous.11 It soon became clear,
however, that these doctors had not been fully informed of their roles. In a stunning blow to the
Morales court’s directive, both anesthesiologists resigned mere hours before the scheduled
execution time.12 Because of their ethical responsibilities, they could not accept the Ninth
Circuit Court of Appeals’ interpretation that they personally would intervene and provide
medication or medical assistance if the inmate appeared conscious or in pain.13 The doctors’
reasons for refusing to participate spotlight a crucial predicament states face in the administration
of lethal injection.
The Morales case unearthed a nagging paradox. The people most knowledgeable about
the process of lethal injection – doctors, particularly anesthesiologists – are often reluctant to
impart their insights and skills. This very dilemma moved Judge Jeremy Fogel, who presided
over Morales’ hearings, to assume unprecedented involvement in an area that had been
controlled primarily by legislatures and department of corrections personnel.14 In response to the
doctor pullout and questions about lethal injection’s viability, Judge Fogel organized the longest
and most thorough evidentiary hearing ever conducted on any execution method.15 The
homework paid off: Examinations and testifying experts opened a window into the hidden world
of executions.

See Valerie Reitman, Doctors Wary of Crossing Line, L.A. Times, Feb. 22, 2006, at 14; Dorsey Griffith, Execution Doctors:
An Ethics Issue: Medical Groups Criticize Plan for Physician to Assess If The Condemned Can Feel Pain, Sacramento Bee, Feb.
17, 2006, at A3.
See Calif. Med. Ass’n, California Medical Assn. Objects to Physician Participation in Executions (Feb. 16, 2006)
(emphasizing, in response to Judge Fogel’s ruling, that the California Medical Association “has for decades sought to end
physician participation in capital punishment”).
See Morales v. Tilton, 465 F. Supp.2d 972, 975 (N.D. Cal. 2006); Morales v. Hickman, Order on Defendant’s Motion to
Proceed on Alternative Method to Order Denying Preliminary Injunction, at 2 (N.D. Cal. Feb. 21, 2006).
See Morales, 465 F. Supp.2d at 977 (noting that, “for reasons that remain somewhat unclear, there was a disconnect between
the expectations articulated in the orders of this Court and the Court of Appeals and the expectations of the anesthesiologists
regarding how they would participate in Plaintiff’s execution”) (internal quotation omitted).
See Morales, 465 F. Supp.2d at 975; see also Morales v. Hickman, 438 F.3d 926, 931 (9th Cir. 2006). In response to Morales’
concerns that the role of the anesthesiologists was “uncertain,” and that the state had not specified whether the execution
chamber’s anesthesiologist would do more “than monitor Mr. Morales’ level of unconsciousness,” id. at 930, the Ninth Circuit
attempted clarification. Id. at 931 (citing Final Order Re: Defendants’ Compliance With Conditions; Order Denying Plaintiff’s
Motions for Discovery of Information and for Reconsideration 1, 2 (N.D. Cal. Feb. 16, 2006).
Judge Fogel acknowledged his uncommon degree of involvement. See Morales, 465 F. Supp. 2d at 975 (“It is hoped that the
remedy . . . will be a one-time event; . . . the particulars of California’s lethal-injection protocol are and should remain the
province of the State’s execution branch.”). For a discussion of legislative changes in execution methods over time, see generally
Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal
Injection and What It Says About Us, 63 Ohio St. L.J. 63 (2002) [hereinafter Denno, When Legislatures Delegate]; Deborah W.
Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. 319 (1997) [hereinafter Denno, Getting to Death];
Deborah W. Denno, Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death Over the Century, 35
Wm. & Mary L. Rev. 551 (1994) [hereinafter Denno, Electrocution].
See Morales, 465 F. Supp.2d at 974 (noting that “the Court has undertaken a thorough review of every aspect of the protocol . .
. [and] has reviewed a mountain of documents . . . [as well as] conducted five days of formal hearings, including a day at San
Quentin State Prison that involved a detailed examination of the execution chamber and related facilities”).


Given that lethal injection is this country’s leading execution method,16 Morales cast a
shadow over executions across the nation. By the time Judge Fogel ruled on December 15,
2006, that California’s lethal injection protocol “as implemented,” violated the Eighth
Amendment,17 other states already had recognized such a possibility.18 Constitutional challenges
to lethal injection currently dominate much of the nation’s death penalty litigation, with no end
in sight.19
As Morales makes clear, medicine is the key to understanding the problems of lethal
injection. Like all thirty-six states that use injection, California’s execution protocol provides for
the intravenous administration of three drugs: sodium thiopental, a common anesthetic for
surgery used to cause unconsciousness; pancuronium bromide, a total muscle relaxant that stops
breathing by paralyzing the diaphragm and lungs; and potassium chloride, a toxin that induces
cardiac arrest and permanently stops the inmate’s heartbeat.20 In Morales, both parties agreed
that, under the state’s protocol, the listed amount of the first drug, sodium thiopental, should
cause the condemned inmate to lose consciousness in less than a minute. The parties also
concurred, however, that if the sodium thiopental was ineffective, it would be unconstitutional to
inject the second and third drugs into a conscious person.21 Because of its paralytic effects, the
second drug, pancuronium bromide, would mask indications that the inmate was conscious and
in “excruciating pain” from the combined impact of all three drugs.22
Judge Fogel determined that California’s process embodied too much of a risk for
unconstitutionality due to “a number of critical deficiencies” in the protocol.23 These included:
(1) “inconsistent and unreliable screening of execution team members” – highlighted, for
instance, by one execution team leader’s smuggling of illegal drugs into the prison while also in
charge of handling the sodium thiopental (a pleasurable and addictive controlled substance);24 (2)
“lack of meaningful training, supervision, and oversight of the execution team” – exemplified by
the court’s conclusion that team members “almost uniformly have no knowledge of the nature or
properties of the drugs that are used or the risks or potential problems associated with the
procedure” and the shockingly indifferent reactions by team members when describing
troublesome executions;25 (3) “inconsistent and unreliable record-keeping” – revealed by
inadequate documentation concerning whether all of the sodium thiopental prepared for an
execution actually was injected and testimony that in several executions it was not, as well as

See Denno, When Legislatures Delegate, supra note 14, at 69. Currently, the United States has available five different types of
execution methods: hanging, firing squad, electrocution, lethal gas, and lethal injection. See id.
Morales, 465 F. Supp.2d at 981.
See, e.g., Taylor v. Crawford, No. 05-4173-CV, 2006 WL 1779035, at *6 (W.D. Mo. June 26, 2006) (holding that Missouri’s
implementation of its lethal injection protocol violated constitutional mandates).
See infra Part IV; see also Vesna Jaksic, Death Penalty Challenges Build: Eleven States React to Bad Convictions, Botched
Executions, Nat’l L.J., Mar. 5, 2007, at 17 (noting that “[a] perfect storm of problematic executions, wrongful convictions and
recent court rulings against the practice of lethal injection has led a growing number of states to challenge the death penalty
through lawsuits and legislative action”).
See Denno, When Legislatures Delegate, supra note 14, at 98.
See Morales, 465 F. Supp. 2d at 978.
See id. at 980.
Id. at 979; see also id. at 981 (“Defendants’ actions and failures to act have resulted in an undue and unnecessary risk of an
Eighth Amendment violation. This is intolerable under the Constitution.”).
Id. at 979.


evidence that “[a] number of the execution logs are incomplete or contain illegible or overwritten
entries with respect to critical data;”26 and (4) “inadequate lighting, overcrowded conditions, and
poorly designed facilities” – noted by descriptions that the execution team members, who were
in a separate room from the inmate, worked in conditions in which the lighting and sound were
so poor and the space so constrained that team members could not effectively observe or hear the
inmate – much less tell whether the inmate was unconscious.27
Other lethal injection challenges throughout the country revealed comparably disturbing
details. In Missouri, where a federal district court held that the state’s implementation of lethal
injection was unconstitutional, the dyslexic doctor who had supervised fifty-four executions over
the course of a decade had a record of more than twenty malpractice suits.28 In Kentucky, the
protocol allowed improperly trained executioners to insert catheters into an inmate’s neck despite
a doctor’s refusal to do so and heated criticism of the procedure, a practice ultimately ruled
unconstitutional.29 In Florida, at the end of a year of intense scrutiny of lethal injection, a
December 2006 execution lasted thirty-four minutes while the prisoner appeared conscious and
in pain.30 And, in North Carolina, a doctor present to monitor the inmate’s level of
consciousness—a court-ordered requirement, but one that would violate the American Medical
Association’s ethical guidelines—later said he had not done so.31 When, after repeated needle
pokes, California inmate Stanley Tookie Williams asked his executioners – “[y]ou guys doing
that right?”32 – Williams could have been addressing department of corrections personnel in
every lethal injection state.
Medical personnel – those individuals most likely to know whether a lethal injection is
being done “right” – often avoid the procedure. In 2006, when a surge of court cases and
resulting media attention began to focus on botched lethal injections,33 the president of the
American Society of Anesthesiology reacted defensively: “Lethal injection was not
anesthesiology’s idea,” he insisted.34 Rather, the problem rested with “American society,” which
“decided to have capital punishment as part of our legal system and to carry it out with lethal
injection.”35 For these reasons, “the legal system has painted itself into this corner and it is not
[the medical profession’s] obligation to get it out.”36 What the ASA president’s statement does
not acknowledge, however, is that medicine is in the same corner with law, holding the paint can
and the brush.

See Ellyde Roko, Note, Executioner Identities: Toward Recognizing a Right to Know Who Is Hiding Beneath the Hood, 75
Fordham L. Rev. 2791, 2791 (2007).
See Baze v. Rees, -- S.W.3d --, 2006 WL 3386544, at *3 (Ky. Nov. 22, 2006); see also Deborah W. Denno, Death Bed, 124
TriQuarterly 141, 162 (2006).
See Governor’s Comm’n on Admin. of Lethal Injection, Final Report with Findings and Recommendations 8 (Fla., Mar. 1,
2007) [hereinafter Florida Commission Report].
See Andrea Weigl, Doc’s Execution Role: ‘Be Present’, News & Observer (Raleigh, N.C.), Mar. 20, 2007, at 1.
Kevin Fagan, The Execution of Stanley Tookie Williams: Eyewitness: Prisoner Did Not Die Meekly, Quietly, S.F. Chron.,
Dec. 14, 2005, at A12.
See infra, Part IV.
Orin F. Guidry, Am. Soc’y of Anesthesiologists, Message from the President: Observations Regarding Lethal Injection, June
20, 2006, (last visited Mar. 9, 2007).


This next phase of the examination of lethal injection in this country will prove most
critical: How will states handle the perplexing medical questions that lethal injection has posed?
Most courts would agree with Judge Fogel that while the system of “lethal injection is broken . . .
it can be fixed.”37 But how?
Part I of this article examines how states ended up with such constitutionally vulnerable
lethal injection procedures. By analyzing the history of lethal injection, this article shows that
mistakes made three decades ago with the method’s creation are being repeated today. Part II
investigates the crucial link between law and medicine in the context of lethal injection.
Physician participation in executions, though looked upon with disdain, is more prevalent—and
perhaps more necessary—than many would like to believe. Part III reports the results of this
author’s unique nationwide study of lethal injection protocols and medical participation. The
study demonstrates that states have continued to produce grossly inadequate protocols that
severely restrict sufficient understanding of how executions are performed and heighten the
likelihood of unconstitutionality. The part emphasizes in particular the utter lack of medical or
scientific testing of lethal injection despite the early and continuous involvement of doctors but
ongoing detachment of medical societies. Part IV discusses the legal developments that lead up
to Morales as well as the strong and rapid reverberations that followed, particularly with respect
to medical contributions.
This article concludes with two recommendations. First, much like what occurred in this
country when the first state switched to electrocution, there should be a nationwide study of
proper lethal injection protocols. An independent commission consisting of a diverse group of
qualified individuals, including medical personnel, should conduct a thorough assessment of
lethal injection, especially the extent of physician participation. Second, this article recommends
that states take their execution procedures out of hiding. Such visibility would increase public
scrutiny, thereby enhancing the likelihood of constitutional executions.
At no other time in this country’s history have doctors or medical organizations been this
committed to evaluating a method of execution.38 Such examination has illuminated the current
finger-pointing between law and medicine concerning responsibility for lethal injection’s flaws.
Medical societies may have shunned involvement with lethal injection, perhaps at times
inappropriately, but physicians contributed to the method’s creation and continue to take part in
its application. Both law and medicine turned a blind eye to a procedure about which warnings
were blared repeatedly. The problem rests not only with “American society,” but also with the
legal and medical communities that are part of it.
This country’s centuries-long search for a medically humane method of execution landed
at the doorstep of lethal injection. Of the thirty-eight death penalty states, lethal injection is the

Morales v. Tilton, 465 F. Supp.2d 972, 974 (N.D. Cal. 2006).
See infra Part II.


sole method of execution in twenty-eight states39 and is one of two methods of execution in
nine.40 Nebraska uses only electrocution.41
Statistics demonstrating lethal injection’s dominance, however, belie the rapidly
changing impact of recent lethal injection challenges. In 2006, for example, executions plunged
to half of their 1999 numbers.42 Such declines seem likely to continue, as thirteen states
currently have executions on hold, all due, in whole or in part, to lethal injection-related
challenges.43 In the early part of 2007, nearly half of the thirty-eight death penalty states had

See Ala. Code §§ 15-18-82-82.1 (2007); Ariz. Rev. Stat. Ann. § 13-704 (2006); Ark. Code Ann. § 5-4-617 (2006); Cal. Penal
Code § 3604 (West 2007); Colo. Rev. Stat. Ann. § 18-1.3-1202 (West 2006); Conn. Gen. Stat. Ann. § 54-100 (West 2007); Del.
Code Ann. tit. 11 § 4209 (2007); West’s F.S.A. § 922.105 (West 2007); Ga. Code Ann., § 17-10-38 (2006); Idaho Code § 192716 (2006); 725 Ill. Comp. Stat. Ann. 5/119-5 (West 2006); Ind. Code Ann. § 35-38-6-1 (West 2006); Kan. Stat. Ann. § 224001 (2006); Ky. Rev. Stat. Ann. § 431.220 (West 2006); La. Rev. Stat. Ann. § 15:569, 15:569.1 (2006); Md. Code Ann., Crim.
Law § 2-303 (2006); Miss. Code Ann. § 99-19-51 (2006); Mo. Ann. Stat. 546.720 (West 2006); Mont. Code Ann. § 46-19-103
(2005); Nev. Rev. Stat. § 176.355 (West 2006); N.H. Rev. Stat. § 630:5 (2006); N.J. Stat. Ann. § 2C:49-2 (West 2007); N.M.
Stat. § 31-14-11 (2006); N.C. Gen. Stat. Ann. § 15-187 (West 2006); Ohio Rev. Code Ann. § 2949.22 (West 2007); Okl. Stat.
Ann. tit. 22, § 1014 (West 2006); Or. Rev. Stat. § 137.473 (2005); 61 Penn. Stat. § 3004 (West 2006); S.C. Code Ann. § 24-3-530
(2006); S.D. Codified Laws § 23A-27A-32 (2006); Tenn. Code Ann. § 40-23-114 (West 2006); Tex. Code Crim. Proc. Ann. art.
§ 43.14 (Vernon 2006); Utah Code Ann. § 77-18-5.5 (West 2006); Va. Code Ann. § 53.1-234 (West 2006); Wash. Rev. Code
Ann. § 10.95.180 (West 2007); Wyo. Stat. Ann. § 7-13-904 (2006). The New York Court of Appeals held the state’s death
penalty statute unconstitutional in 2004, preventing executions. See People v. LaValle, 817 N.E.2d 341, 367 (N.Y. 2004).
These nine states are divided according to the alternative execution method they allow apart from lethal injection. Alabama,
Florida, South Carolina, and Virginia allow for electrocution. See Ala. Code §§ 15-18-82-82.1 (2007); West’s F.S.A. § 922.105
(West 2007); S.C. Code Ann. § 24-3-530 (2006); Va. Code Ann. § 53.1-234 (West 2006). New Hampshire and Washington also
have hanging as a method. See N.H. Rev. Stat. § 630:5 (2006); Wash. Rev. Code Ann. § 10.95.180 (West 2007). California and
Missouri both have lethal gas as an alternative. See Cal. Penal Code § 3604 (West 2007); Mo. Ann. Stat. 546.720 (West 2006).
Idaho provides for execution by firing squad. See Idaho Code § 19-2716 (2006). This footnote does not include statutes
designating a choice only if an inmate was sentenced before a certain date, or any of the other myriad variations in statutes that
have been documented in detail elsewhere.
See Neb. Rev. Stat. § 29-2532 (2006).
Executions in the United States have decreased from a high of 98 in 1999. See Capital Punishment 2005,, at 9. In 2006, states executed 53 people, 52 by lethal injection and one by
electrocution. See Capital Punishment Statistics: Summary Findings, Fourteen states
executed condemned inmates. See id. Texas executed twenty-four inmates; Ohio executed five inmates; Florida, North Carolina,
Oklahoma, and Virginia each executed four inmates; and Indiana, Alabama, Mississippi, South Carolina, California, Montana,
Nevada, and Tennessee each executed one inmate. See id.
Illinois officially imposed a moratorium on executions in 2001. See Governor Ryan Declares Moratorium On Executions, Will
Appoint Commission To Review Capital Punishment System, Jan. 31, 2000, at
ShowPressRelease.cfm?SubjectID=3&RecNum=359. New Jersey lifted a three-month long moratorium in March 2007, but
executions still are on hold in the state after a state court declined to approve the state’s revised protocol. See In re Readoption
with Amendments of Death Penalty Regulations, N.J.A.C. 10A:23, by the New Jersey Department of Corrections, 842 A.2d 207
(N.J. App. Div. Feb. 20, 2004); see also Jeff Whelan, Christie Seeks Federal Death Penalty in Newark Slaying, The Star-Ledger
(Newark, N.J.), April 4, 2007, at 18. Federal district courts in California and Missouri held execution protocols unconstitutional
in 2006. See Morales v. Tilton, 465F. Supp. 2d 972 (N.D.Cal. 2006); Taylor v. Crawford, No. 05-4173-CV, 2006 WL 1779035,
*8 (W.D. Mo., 2006). Three states, Florida, South Dakota, and Tennessee, have moratoriums on executions by executive order.
See Fla. Exec. Order 260 (Dec. 15, 2006) (staying all executions after a botched execution); An Order Directing the Department
of Correction to Complete a Comprehensive Review of the Manner in which the Death Penalty Is Administered in Tennessee,
Exec. Order No. 43, (placing
executions on hold for ninety days); Aug. 29, 2006 Press Release from Governor’s Office: Gov. Rounds Issues Statement on the
Stay of Execution for Elijah Page, Courts in five other states stayed executions in 2006 and
have not had an execution since the stay. See Robinson v. Beck, 07 CVS 001109 (Wake Co. Sup. Ct. Jan. 25, 2007), available
0order.pdf; Cooey v. Taft, 430 F. Supp. 2d 702 (S.D. Ohio 2006) (staying an execution pending a challenge to lethal injection);
Jackson v. Taylor, Civ. No. 06-3000 (D. Del. May 9, 2006) (staying an execution) available at:


legislation pending either to abolish the death penalty,44 or to establish a moratorium on
executions.45 Of course, there have been backlashes.46 But undeniable evidence shows death
penalty’s slide, and lethal injection is a crucial domino in the deck.
A. Before Lethal Injection
This country’s turn to lethal injection reflects states’ growing reliance on medicine as a
response to philosophical, financial, and political pressures to eliminate the death penalty.47 For
example, New York state’s increasing opposition to capital punishment in the early 1800’s – a
move prompted by a series of disastrous public hangings attended by crowds of thousands48 –
lead the state’s Governor to ask the legislature in 1885 “whether the science of the present day”
could not find a less barbaric means to execute.49 The Governor’s appointed Commission of
three “well known citizens” ultimately selected the electric chair, following their two-year
impressively detailed study of every execution method ever used throughout history.50
In 1890, the murderer William Kemmler became the first person in the country to be
electrocuted.51 New York’s decision to enact electrocution spurred intense legal and scientific
battles, resolved only when the United States Supreme Court decided that the Eighth
Amendment would not apply to the states.52 Kemmler was executed in a day of confusion and
horror,53 suffering a slow demise of burning flesh and ashes.54 Such catastrophe did not
2006.06.26%20order%20granting%20PI.pdf; Evans v. State, Nos. 107, 122-24, 2006 WL 3716363 (Md. Dec. 19, 2006).
Numerous states have legislation pending to abolish the death penalty. See, e.g., H.B. 2278, 48th Legis., 1st Reg. Sess. (Ariz.
2007); H.B. 1094, 66th Gen. Assem., Reg. Sess. (Colo. 2007); S.B. 328, 95th Gen. Assem. (Ill. 2007); S.B. 222, 82d. Legis.,
Reg. Sess. (Kan. 2007); H.B. 200, Reg. Sess. (Ky. 2007); H.B. 225, 422d. Gen. Assem., Reg. Sess. (Md. 2007); H.B. 216, Legis.
Reg. Session (Miss. 2007); S.B. 354, 94th Gen. Assem., 1st Reg. Sess. (Mo. 2007); L.B. 476, 100th Legis., 1st Sess. (Neb. 2007);
H.B. 607, 160th Legisl., 2007 Sess. (N.H. 2007); S.B. 2471, 212th Legis. (N.J. 2007); H.B. 190, 48th Legis., 1st Sess. (N.M.
2007); A.B. 542, 230th Legis. 2007-08 Reg. Sess. (N.Y. 2007); H.B. 1197, 82d Legis. Assem. (S.D. 2007); H.B. 745, 80th Legis.
(Tex. 2007); H.B. 1960, 2007 Sess. (Va. 2007); H.B. 1518, Wash. 60th, 1st Reg. Sess. (Wash., 2007).
Legislation in several states seeks to impose a moratorium to study capital punishment is pending. See, e.g., H.B. 205, Legis.
Reg. Session (Miss. 2007); S.B. 439, 94th Gen. Assem., 1st Reg. Sess. (Mo. 2007); H.B. 809, 80th Legis. (Tex. 2007).
Several states are seeking to expand the application of the death penalty. See H.B. 185, 149th Gen. Assem. (Ga. 2007), H.B.
3130, 117th Gen. Assem. (S.C. 2007), H.B. 86, 57th Legis. (Utah 2007). A bill in West Virginia is attempting to reintroduce the
punishment. See H.B. 2124, 78th Legis. (W. Va. 2007).
See generally Denno, When Legislatures Delegate, supra note 14.
See generally Philip E. Mackey, Hanging in the Balance: The Anti-Capital Punishment Movement in New York State, 17761961 (1982).
In re Kemmler, 136 U.S. 436, 444 (1890).
Report of the Commission to Investigate and Report the Most Humane and Practical Method of Carrying into Effect the
Sentence of Death in Capital Cases (1888) [hereinafter New York Commission Report]. The Commission consisted of its Chair,
Elbridge T. Gerry, a prominent attorney and counsel for the Society for the Prevention of Cruelty to Animals, Dr. Alfred P.
Southwick, a dentist from Buffalo, and Matthew Hale, an attorney from Albany. See id.
See Far Worse than Hanging, N.Y. Times, Aug. 7, 1890, at 1-2.
Kemmler, 136 U.S. at 446.
See Far Worse than Hanging, supra note 51; see also Richard Moran, Executioner’s Current: Thomas Edison, George
Westinghouse, and the Invention of the Electric Chair 15-16 (2002).
See Far Worse than Hanging, supra note 51; see also Moran, supra note 53, at 18-20 (2002).


dissuade states from adopting this new method of purported scientific advancement.55
Electrocution still was deemed superior to hanging or, at the very least, was far less visible.56
The problems with electrocution only worsened with the passing decades, despite (or
perhaps because of) the enhanced scrutiny of the method’s application.57 By the time Allen Lee
Davis was executed in Florida in 1999, over a century after Kemmler, the tragedies of the
method appeared insurmountable: Davis suffered deep burns and bleeding on his face and body,
as well as partial asphyxiation from the mouth strap that belted him to the chair’s head-rest.58
Millions of people around the world virtually viewed the results of Davis’s execution through the
Florida Supreme Court’s website postings of Davis’s post-execution color photographs –
ultimately crashing and disabling the Florida court’s computer system for months.59 While the
Davis botch did not halt electrocutions, it did prompt the Florida legislature to enable inmates to
choose between electrocution and lethal injection.60
In light of this troubling execution methods history,61 lethal injection’s popularity is
understandable. Modern hangings risked being too long and cruel, like their predecessors.62
Lethal gas was judged the worst of all.63 In 1992, for example, Donald Harding’s eleven-minute
execution and suffocating pain were so disturbing for witnesses that reporters cried, the attorney
general vomited, and the prison warden claimed he would resign if forced to conduct another
legal gas execution.64 While the firing squad has not been systematically evaluated, and may
even be the most humane of all methods, it always has carried with it the baggage of its brutal
image and roots.65 The law turned to medicine to rescue the death penalty.
The following section provides the most thorough and accurate account available of this
law-medicine partnership based on historical research as well as extensive interviews with the
major parties involved in lethal injection’s origin. The legal system relied on anesthesiology just
enough to understand the concept of injection, but not to account sufficiently for its barbarity
when misapplied on human beings.


See Denno, Electrocution, supra note 14, at 364-370.
See Stuart Banner, The Death Penalty: An American History 169 (2002) (noting that fifteen states had adopted electrocution
by 1913 and another eleven states used the method by 1950).
See generally Marian J. Borg & Michael L. Radelet, On Botched Executions, in Capital Punishment: Strategies for Abolition
143, 143-68 (Peter Hodgkinson & William A. Schabas eds. 2004).
See Provenzano v. Moore, 744 So. 2d 413, 442-44 (Fla. 1999) (Shaw, J., dissenting); see also Denno, When Legislatures
Delegate, supra note 14, at 78-79.
See, e.g., Millions Flock to US Execution Site, The Scotsman (Edinburgh, Scot.), Nov. 1, 1999, at 22; see also Denno, When
Legislatures Delegate, supra note 14, at 78-79
See West’s F.S.A. § 922.105 (West 2007) (providing inmates with a choice between electrocution and lethal injection).
See Borg & Radelet, supra note 57, at 143-68.
See Campbell v. Wood, 18 F.3d 662, 684-85 (9th Cir. 1994); see also Gawande, supra note 7, at 1222 (“Under the best of
circumstances, the cervical spine is broken at C2, the diaphragm is paralyzed, and the prisoner suffocates to death, a minutes-long
See Fierro v. Gomez, 77 F.3d 301, 309 (9th Cir. 1996) (finding execution by lethal gas unconstitutional).
See Borg & Radelet, supra note 57, at 163.
See generally Christopher Cutler, Nothing Less Than the Dignity of Man: Evolving Standards, Botched Executions and Utah’s
Controversial Use of the Firing Squad, 50 Clev. St. L. Rev. 335, 337-98 (2002-2003) (surveying the history and use of the firing
squad in the United States).


B. The Advent of Lethal Injection
Lethal injection was considered a potential execution method in the United States as early
as 1888.66 The New York Governor’s appointed Commission rejected it, in part because of the
medical profession’s belief that, with injection, the public would begin to link the practice of
medicine with death.67 Of course, this concern about lethal injection exists to the present day.68
Six decades later, Great Britain’s Royal Commission on Capital Punishment also
dismissed lethal injection, concluding after a five-year study of the United Kingdom’s entire
death penalty process that injection was no better than hanging, the country’s long-standing
method.69 Critical to the Royal Commission’s investigation of lethal injection, however, was the
substantial weight the Commission gave to medical opinions and expertise.70 The Commission
solicited input from members of two of the country’s most established medical organizations –
the British Medical Association and the Association of Anesthetists – as well as prison medical
The host of problems these medical experts detected with lethal injection still ring true
today. For example, based on such medical contributions, the Royal Commission determined
that a standard lethal injection could not be administered to individuals with certain “physical
abnormalities” that make their veins impossible to locate; rather, it was likely that executioners
would have to implement intramuscular (as opposed to intravenous) injection, even though the
intramuscular method would be slower and more painful.72 In addition, the Commission
emphasized that lethal injection requires medical skill.73 While the British medical societies
made clear their opposition to participating in the process,74 the Royal Commission still believed
that acceptable executioners could be found, even in the medical profession.75 Nonetheless,
other obstacles to lethal injection proved determinative.76 In particular, the Commission found a
lack of “reasonable certainty” that lethal injections could be performed “quickly, painlessly and
decently,” at least at that time.77 Ultimately, in 1965, the death penalty was, with a few
exceptions, abandoned in Great Britain.78

See New York Commission Report, supra note 50.
See Denno, Electrocution, supra note 14, at 575-577.
See infra Part II.
See Royal Commission On Capital Punishment, 1949-53 Report, 258, 261 (1953) [hereinafter Royal Commission Report].
See id. at 257-61.
See id. at 257.
See id. at 258-59.
See id. at 258-60.
See id. at 258. The Commission quoted the view of the British Medical Association:
“No medical practitioner should be asked to take part in bringing about the death of a convicted murderer. The Association
would be most strongly opposed to any proposal to introduce, in place of judicial hanging, a method of execution which would
require the services of a medical practitioner, either in carrying out the actual process of killing or in instructing others in the
technique of the process.” Id.
See id. at 259.
See id.
Id. at 261.
See Murder (Abolition of Death Penalty) Act 1965, c. 71 (Eng.). Consequently, there was no reason for the British to reevaluate whether lethal injection would be preferable to other methods of execution. See Franklin E. Zimring & Gordon
Hawkins, Capital Punishment and the American Agenda 109-10 (1986).


In 1976, the United States re-examined the lethal injection issue after the Supreme Court
reinstated the death penalty following a four-year moratorium.79 Remarkably, during this reexamination, none of the medical opinion evidence gathered on lethal injection — either from
New York or the United Kingdom — was ever even mentioned in legislative discussions or
debates. Seemingly oblivious to prior concerns, American lawmakers emphasized that lethal
injection appeared more humane and visually palatable relative to other methods.80 It was also
1. Oklahoma Roots
In May 1977, Oklahoma became the first state to adopt lethal injection.82 Contrary to the
thorough and deliberative approaches taken by the New York and British commissions, however,
accounts suggest that two doctors (at most) were the sole medical contributors to the method’s
creation.83 At each step in the political process, concerns about cost, speed, aesthetics, and
legislative marketability trumped any medical interest that the procedure would ensure a humane
The two key legal players in the development of Oklahoma’s lethal injection statute were
then-Oklahoma State Senator Bill Dawson,84 and then-Oklahoma House Representative Bill
Wiseman.85 Dawson claimed that he first thought of using drugs for human execution when he
was a college student.86 Wiseman said he acquired the idea in 1976, when he visited his personal
physician, the president of the Oklahoma Medical Association (OMA), and asked him for a more
humane way to execute death row inmates.87 Strikingly, that physician later informed Wiseman
that the OMA Board did not want to become entrenched in the venture because licensed
physicians could not participate in executions.88 In subsequent years, American medical
societies continuously would echo the OMA’s stance, balking at any official involvement in
lethal injection. And lawmakers would proceed with their decision making, regardless.
With medical societies out of the picture, both Dawson and Wiseman turned elsewhere.
Eventually, they consulted with A. Jay Chapman, M.D., then Chief Medical Examiner for


See Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion).
See infra Part II.
See infra notes 112-14 and accompanying text.
See Denno, Getting to Death, supra note 14, at 375.
See infra notes 89-103 and accompanying text.
Dawson died of a brain tumor in 1987. See Robby Trammell, Bill Dawson, 43, Dies of Cancer, Daily Oklahoman, Jan. 18,
1987, at A1.
The final bill listed Dawson and Wiseman among its sponsors. See S.B. 10, 36th Leg., 1st Sess. (Okla. 1977) (An Act Relating
to Criminal Procedure; Amending 22 O.S. 1971, Section 1014; and Specifying the Manner of Inflicting Punishment of Death;
and Making Provisions Separable). The bill passed the Senate on May 3, 1977 and the House of Representatives on May 9,
1977. See id. Both the House and Senate held conferences on the bill and issued a conference report, indicating that it was
controversial. See id.
See Robert Moore, Doctor as Executioner: The Argument Over Death by Injection, The New Physician, September 1980, at
21-24. These thoughts were fueled further when, as a senator, Dawson received a letter from a student in his district reiterating
the idea of lethal injections as a viable method for execution. See id. at 22.
See William J. Wiseman, Jr., Confessions of a Former Legislator, Christian Century, June 20-27, 2001, at 6-7.
See Wiseman, supra note 87, at 6.


Oklahoma.89 From the start, Chapman was upfront about his glaring lack of expertise. Indeed,
when initially contacted, his “first response was that [he] was an expert in dead bodies but not an
expert in getting them that way.”90 Wiseman also warned Chapman about OMA’s position and
the effect such views could have on Chapman’s medical career.91 Chapman was not worried:
“‘To hell with them: let’s do this.’”92
The two men pulled out a pad and quickly drafted a statute based on Chapman’s
dictation: “An intravenous saline drip shall be started in the prisoner’s arm, into which shall be
introduced a lethal injection consisting of an ultra-short-acting barbiturate in combination with a
chemical paralytic.”93 Chapman assumed that the chemicals used would be sodium thiopental
(what has in fact been used), and the paralytic would be choral hydrate; yet, both Wiseman and
Chapman believed the statute should be vague.94 Neither of them was certain if or when lethal
injection would be implemented, or what drugs might then be available.95 Unfortunately, such
stunning unknowns had no impact on Wiseman’s confidence in the procedure’s potential
success. As Wiseman recounted, lethal injection (a name he said he created), had the following
benefits in his mind: “No pain, no spasms, no smells or sounds – just sleep, then death.”96
Given Wiseman’s complete lack of medical background,97 such optimism is disturbing in light of
the problems with injection that the Royal Commission earlier had detected and that recent
litigation has revealed.
Completely independent of Wiseman’s or Chapman’s input or knowledge,98 Dawson also
sought the advice of Stanley Deutsch, M.D., who then was head of Oklahoma Medical School’s
Anesthesiology Department.99 Deutsch and Dawson never met, but simply talked once on the
phone when Dawson called to ask Deutsch to recommend a method for executing prisoners
through the intravenous administration of drugs.100 Deutsch responded with a two-page letter
riddled with typos that recommended two types of drugs: “an ultra short acting barbiturate” (for
example, sodium thiopental) in “combination” with a “nueormuscular [sic] blocking drug[]” (for
example, pancuronium bromide) to create a “long duration of paralysis.”101 But Deutsch’s
February 28, 1977 correspondence probably was sent too late to contribute to the Senate’s March

See Moore, supra note 86, at 22. In 1982, Chapman left the position of Chief Medical Examiner to move to California and
work in private practice as a forensic pathologist for Sonoma County. Telephone Interview with A. Jay Chapman, former
Oklahoma Chief Medical Examiner (Mar. 2, 2007).
E-mail from A. Jay Chapman, former Oklahoma Chief Medical Examiner, to Deborah W. Denno, Professor, Fordham Law
School (Dec. 19, 2005) [hereinafter Chapman E-mail] (on file with author).
See Wiseman, supra note 87, at 7.
See id.; see also Telephone Interview with A. Jay Chapman, former Oklahoma Chief Medical Examiner (Mar. 2, 2007).
See Wiseman, supra note 87, at 7; see Telephone Interview with A. Jay Chapman, former Oklahoma Chief Medical Examiner
(Mar. 2, 2007).
See Wiseman, supra note 87, at 7. In fact, however, the term “lethal injection” earlier was used by the Royal Commission in
their report. Royal Commission Report, supra note 50, at 257.
See Wiseman, supra note 87, at 7.
Telephone Interview with William J. Wiseman, Jr., former Oklahoma State Representative (Oct. 13, 2005).
See Denno, Getting to Death, supra note 14, at 374-75.
Telephone Interview with Stanley Deutsch, former professor of anesthesiology, George Washington Medical School (April
21, 2006).
See Letter from Stanley Deutsch, Ph.D., M.D., Professor of Anesthesiology, University of Oklahoma Health Sciences Center,
to the Hon. Bill Dawson, Oklahoma state senator (Feb. 28, 1977) [hereinafter Deutsch Letter] (on file with author).


2, 1977 passage of the initial version of the statute, which contained language identical to the
final statute.102
By all accounts, then, Chapman was the major, if not the primary, creator of lethal
injection. Although Chapman played the crucial role in creating lethal injection, he remains
shocked by reports that lethal injection generally is not performed by doctors but rather by
individuals with little-to-no familiarity with the procedure.103 In theory, lethal injection might
have held much appeal. Yet the lawyers and doctors so fervently advocating its use had no
concept of how the procedure would operate in reality. Two professions (law and medicine),
blinded by resolve, plunged together into a dark legal and medical hole from which they have yet
to emerge.
2. No Medical or Scientific Study
A detailed investigation of lethal injection’s creation and history shows that at no point
was the procedure medically or scientifically studied on human beings.104 That the Oklahoma
statute (and later, the more specifically designated protocol), did not have medical justification
became clear during the legislative debate. At one point, the lethal injection bill stalled, in large
part because of concern that lethal injection had not been tested sufficiently.105 Indeed, William
Hughes, M.D., chairman of the OMA’s legislative committee, who might have offered an
informed perspective, had not even read the bill before it was submitted to the legislature.106 Nor
did he want to.107 Once again, the OMA turned its back on the lethal injection process.
Nevertheless, on March 2, 1977, the Senate voted 26-20 to change the state’s execution
method from electrocution to lethal injection.108 This vote followed a two-hour debate that
focused on a range of issues – deterrence (with some senators saying that the electric chair was
the better deterrent to murder), humaneness (with some senators saying that lethal injection was
more humane), and retribution (with some senators arguing that lethal injection was “an easy

See id. Deutsch’s letter to Dawson so closely mirrored the final wording of Oklahoma’s lethal injection statute that, in
hindsight, it seemed that it had served as a basic blueprint. See Denno, When Legislatures Delegate, supra note 14, at 97.
Deutsch consistently has been given credit for suggesting the original lethal injection chemicals, an account that he and others
justifiably encouraged; yet, his true impact may have only confirmed what Chapman initially suggested. See Telephone Interview
with Lawrence Egbert, M.D., M.P.H, President, Maryland chapter of Physicians for Social Responsibility (Jan. 24, 2007).
Regardless, in context, both doctors’ recommendations were misplaced. The author’s interviews with Dr. Chapman and Dr.
Deutsch indicate that the two doctors gave advice independently and that, contrary to earlier explanations and Dr. Deutsch’s own
personal beliefs, Dr. Deutsch had no actual input into the decision making because his letter was too late. Telephone Interview
with A.J. Chapman, former Oklahoma Chief Medical Examiner (Mar. 2, 2007); Telephone Interview with William J. Wiseman,
Jr., former Oklahoma State Representative (Oct. 13, 2005).
See Human Rights Watch, So Long as They Die: Lethal Injections in the United States in the United States 33 (2006);
Telephone Interview with A.J. Chapman, former Oklahoma Chief Medical Examiner (Mar. 2, 2007); Chapman E-mail, supra
note 90.
See Denno, When Legislatures Delegate, supra note 14, at 90-120.
See Moore, supra note 86, at 22.
See id.
See id.; Jim Killackey & Ellen Knickmeyer, Execution Called Uncivilized…But Inmate ‘Simply Goes to Sleep,’ Lethal Drug
Proponent Say, The Daily Oklahoman, July 14, 1987. These developments might have prompted Dawson to contact Deutsch to
acquire further medical input.
See S.B. 10, 36th Leg., 1st Sess. (Okla. 1977) (An Act Relating to Criminal Procedure; Amending 22 O.S. 1971, Section
1014; and Specifying the Manner of Inflicting Punishment of Death; and Making Provisions Separable).


way out”).109 One particularly critical point discussed served as an eerie harbinger of events to
come – the problems that lethal injection could potentially cause.110 Yet, this subject was narrow
and limited. For example, one senator warned that some drug-using inmates might be less
affected by the injection and survive, rendering the inmate a “vegetable to take care of.”111
Remarkably, however, such a comment laments the economic repercussions of the problem – the
state’s need to provide care for an inmate after a botched execution — not the Eighth
Amendment issue of cruelty or the sheer inhumanity of causing such a horrifying and
preventable mistake.
In fact, questions of cost caught the attention of legislators. Dawson had informed the
Senate that, according to the Oklahoma Department of Corrections, $62,000 would be needed to
renovate the electric chair because it had been damaged.112 Building a gas chamber would
require $250,000.113 By contrast, “[w]hen he [Dawson] pointed out that the cost of execution by
injection would be only about $10, the argument ‘did seem to carry some weight’ in the
On April 20, 1977, the House finally passed the bill with a 74-18 vote.115 Critically,
however, that version of the bill dropped a key amendment “requiring the state to continue using
the electric chair until death by drugs has been ruled legal by the U.S. Supreme Court.”116 The
amendment’s disappearance presents a disturbing irony: The method of execution that so
dominates this country’s death penalty system might never have been implemented in its state of
origin without Supreme Court approval.
Immediately after the bill’s passage Chapman expressed alarm about how lethal injection
would be practiced.117 His statements in the Daily Oklahoman foreshadowed the problems to
come, problems that have remained unresolved for thirty years:
Dr. A. Jay Chapman, state medical examiner, said [in May 1977] that if
the death-dealing drug is not administered properly, the convict may not die and
could be subjected to severe muscle pain. The major hazard of using lethal drugs
in the execution of criminals is missing the vein in establishing an intravenous
“pathway” for the drugs, he warned. Dr. Chapman, an early proponent of the
execution method, said it is not necessary that a physician administer the drug, but
it should be someone knowledgeable in drug injection. . . . In describing what he
perceives as the ideal process for administering the drug, Dr. Chapman said a
“drip” should be started intravenously in the prisoner’s arm. Direct shots into the

See John Greiner, Drug Executions Win Senate Nod, The Daily Oklahoman, Mar. 3, 1977, at 1; see also supra note 85.
See Greiner, supra note 109.
See Moore, supra note 86, at 23.
See id.
See S.B. 10, 36th Leg., 1st Sess. (Okla. 1977) (An Act Relating to Criminal Procedure; Amending 22 O.S. 1971, Section
1014; and Specifying the Manner of Inflicting Punishment of Death; and Making Provisions Separable).
See id.; see also Mike Hammer, Drug Death Bill Passes, The Daily Oklahoman, April 21, 1977, at 65.
See Jim Killackey, Execution Drug Like Anesthesia, The Daily Oklahoman, May 12, 1977, at 1.


vein would not be used. When the intravenous pathway was secured, “one big
push of drugs” would be made.
Dr. Chapman said the drug injection could take
only several seconds and would feel like the sudden “loss of consciousness” felt
by surgery patients who have anesthesia induced. . . .
The barbiturate drug which could be used, Dr. Chapman said, is a
hypnotic sedative named “thiopental.” It simply would put the prisoner to sleep.
The paralytic agent, which would cause respiratory muscles to cease functioning,
may be a curare-type compound, he said.
State Corrections Director Ned Benton said . . . his office will work
throughout the summer with the medical examiner’s office to find the best method
of drug injection “which could be defended in court.” Benton said it was his
understanding that state laws do not restrict who gives shots.118
Chapman’s initial concerns all have played out continuously in executions across the
country for the last quarter century. For example, occurrences of “severe muscle pain” and
“missing the vein,” as well as fears that “the convict may not die,”119 have been real and repeated
problems. Likewise, the need to have available “someone knowledgeable in drug injection”120
raises one of the most significant issues of all, as Morales and recent lethal injection litigation
demonstrate. But such comments also prompt a key question: How could Chapman support a
bill – indeed create a procedure – knowing all too well the dangerous pragmatic complications
associated with it? While Chapman offered blunt statements in 2006 that he “never knew we
would have complete idiots injecting these drugs . . . [w]hich we seem to have,”121 from the
beginning, he explicitly warned of that possibility.122
News articles from the late 1970s make clear the tentative status of Oklahoma’s protocol.
A 1979 Daily Oklahoman article, for example, emphasized that “[o]fficials with the State
Department of Corrections say it may be years – if ever – before they are required to carry out
mandates of the 1977 Legislature, which approved the drug injection law.”123 The article also
noted that “[o]fficials feel that if and when they have to use the injection law, new and better
drugs may be available.”124 Such statements suggest officials had limited confidence in the
effectiveness of the chemicals that Chapman introduced, and even anticipated they might never
be used. Likewise, while Oklahoma Department of Corrections officials adopted a protocol in


Human Rights Watch, supra note 103, at 31.
Of course, Chapman was not the only person contributing to the hazards of lethal injection. Former State Corrections Director
Ned Benton, whom the Daily Oklahoman quoted, has now said, in hindsight, he was not aware of the details of Oklahoma’s
lethal injection protocol because he believed that an execution in Oklahoma would not immediately take place. See E-mail from
Ned Benton, former Oklahoma Corrections Director, to Deborah W. Denno, Professor, Fordham Law School (July 18, 2005).
Benton’s explanation, however, would not be acceptable today. As the State Corrections Director, he was responsible for the
contents of the protocol irrespective of when or even if it was ever going to be used. As current lethal injection litigation shows,
this very kind of disengagement on the part of corrections personnel, particularly at Benton’s senior level, has created a host of
major difficulties in lethal injection executions. See infra Part IV.
See Jim Killackey, Officials Draw Grim Executions Lethal, The Daily Oklahoman, Nov. 12, 1979, at 1.
Id. (emphasis added).


1978 outlining how an injection would occur, the Department noted that the protocol might need
“a few modifications or refinements.”125
Chapman provided those modifications in 1981, as one of his last responsibilities as state
medical examiner.126 Perhaps Chapman’s most crucial change was adding a third drug,
potassium chloride, to the prior two-drug lethal injection mix.127 In doing so, Chapman
effectively set the final drug framework for all future lethal injection executions. It is now this
peculiar combination of all three chemicals that makes lethal injection so controversial.128
Overall, lethal injection’s history shows how the medically complex process became
ensconced in both law and politics. This powerful dynamic surfaced in the Daily Oklahoman’s
comment about viewing the injected inmate: “Officials do not plan to monitor the prisoner’s life
signs during the execution [in order to] avoid moral judgments about the procedure because of
immense controversy over capital punishment.”129 That very issue remains a source of
contention today. States, including California, have procedures in which an inmate’s face and
body cannot be fully seen during the lethal injection process.130 From the start, then, the social
and legislative push in favor of having a death penalty permeated the lethal injection procedure –
a troubling mix that continues full throttle.
3. Human Execution and Animal Euthanasia
The drive for the return of capital punishment also lead other states to look at execution
methods. Several states initially considered the use of lethal injection because of comparisons
between human execution and animal euthanasia.131 In 1973, then-Governor Ronald Reagan of
California recommended lethal injection when he analogized it to putting injured horses to

Telephone Interview with A.J. Chapman, former Oklahoma Chief Medical Examiner (Mar. 2, 2007). He left for a forensic
pathologist position in California. Id.
Letter from A. Jay, M.D., Office of the Chief Medical Examiner, State of Oklahoma, to Dr. Armond Start, Dep’t of Corr.,
State of Oklahoma, June 24, 1981 (concerning the procedures for executions to be carried out at the state penitentiary). Those
reports state that not only would Chapman be the designated person to devise the details of the implemented protocol, but also
that the protocol could include potassium chloride. See Killackey, supra note 123. In 1978, the Department of Corrections
protocol indicated the following drug combinations:
By law, capital punishment in Oklahoma must be carried out by means of a “continuous, intravenous
administration of a lethal quantity of sodium thiopental combined with either tubocurarine, succinylcholine
chloride or potassium chloride, an ultrashort-acting barbiturate combination with a chemical paralytic agent.”
In 1981, as predicted, the Oklahoma Department of Corrections made modifications to that protocol, all of which Jay Chapman
contributed. In contrast to the language used in the 1978 protocol, the 1981 protocol detailed the following drug combinations
and language that Chapman recommended:
The execution shall be by means of a continuous, intravenous administration of a lethal quantity of sodium
thiopental combined with either tubo-curarine or succinylcholine chloride and/or potassium chloride which is
an ultrashort-acting barbiturate combination with a chemical paralytic agent. A designated employee of the
Department will acquire a sufficient quantity of the previously named chemical agents and will maintain the
security of these chemical agents until the time of execution.
Okla. Dep’t of Corr., Memorandum: Summary of Policy and Purpose (July 10, 1981).
See infra Part III.
Killackey, supra note 123.
See Morales v. Tilton, 465 F. Supp.2d 972, 979 (N.D. Cal. 2006).
See Moore, supra note 86, at 23.


sleep.132 Similarly, in 1977, Texas State Representative Ben Grant, who created the Texas lethal
injection bill, stated that his experiences presiding over a hearing on the humane treatment of
animals persuaded him of the method’s benefits.133
At the same time, the absence of deliberation about the best way to lethally inject a
human resulted in a shocking inconsistency: The methods for euthanizing animals require
substantially more medical consultation and concern for humaneness than the techniques used to
execute human beings.134 According to the American Veterinary Medical Association (AVMA),
it is not acceptable for veterinarians to administer potassium chloride – lethal injection’s third
drug – to an animal that is not anesthetized.135 The AVMA manual for the euthanasia of animals
also specifies the Association’s rigorous training requirements,136 which exhibit far more thought
than the procedures set forth in most lethal injection protocols.137 The contrasting procedures for
humans and animals underscore the sheer disregard for injection’s medical justification.
Not surprisingly, this issue has found its way into recent lethal injection litigation.138 For
example, the Ninth Circuit in 2005 considered it “somewhat significant that at least nineteen
states have enacted laws that either mandate the exclusive use of a sedative or expressly prohibit
the use of a neuromuscular blocking agent in the euthanasia of animals.”139 The question
becomes, then, whether states will continue to hold the standard for executing human beings
below that used by veterinarians. In this country, the euthanasia of animals is a highly regulated
and evolving process, based on strict guidelines periodically revised and modernized by the
AVMA.140 Lethal injection’s history shows that the method was never subjected to medical and
scientific study, much less held to the standards for animal euthanasia.


Given the lack of medical justification for lethal injection, a focus on physician
participation in the method’s implementation is critical. As Morales indicated, states
increasingly have looked to physician involvement in lethal injections to prevent execution

See Henry Schwarzschild, Homicide by Injection, N.Y. Times, Dec. 23, 1982, at A15 (quoting Ronald Reagan).
See Moore, supra note 86, at 23.
See id.
See American Veterinary Medical Association, Report of the AVMA Panel on Euthanasia, at 680 (2000).
See id. at 673.
See infra Part III.
Ironically, because of expert testimony that the first drug in the lethal sequence would render the inmate unconscious, some
courts have not addressed the substance of the animal euthanasia argument. See, e.g., Hankins v. Quarterman, Slip Copy, 2007
WL 959040, at *20-21 (N.D. Tex. Mar. 30, 2007). The animal euthanasia issue may gain momentum as lethal injection litigation
gains further steam. See Brown v. Beck, Slip Copy, 2006 WL 3914717, at *2 n.2 (E.D.N.C. April 7, 2006) (“Plaintiff notes that
protocols utilizing such long-acting barbiturates have been adopted by the American Veterinary Medical Association and by
physicians under Oregon's Death with Dignity Act.”). On the whole, however, courts have yet to give substantial attention to
arguments regarding animal euthanasia. See, e.g., Walker v. Johnson, 448 F. Supp. 2d 719, 724 (E.D. Va. 2006) (“[A]ny
discussion by Plaintiff about the standards of animal euthanasia has no bearing on death penalty matters and is rejected by the
Beardslee v. Woodford, 395 F.3d 1061, 1072-73 (9th Cir. 2005); see also id. at 1073 n.10 (noting that “[t]he most common
protocol for animal euthanasia is a single overdose of a barbiturate, usually sodium pentobarbital (which is a longer acting
barbiturate than sodium pentothal)”).
See generally, American Veterinary Medical Association, supra note 135.


disasters – ranging from California’s option of including anesthesiologists,141 to Missouri’s
requirement of a physician’s role,142 to Georgia’s recently enacted statute forbidding medical
associations from reprimanding doctors who participate in executions.143 Although some
physicians have indicated a willingness to engage in executions,144 medical associations
generally have poured out in protest.145
Attempting to determine whether medical associations appropriately are shunning
involvement is a daunting task. What moral measure should be used? What legal compass? On
some level, the process can be compared to a Rorschach inkblot test, which psychologists use to
assess individuals’ perceptions of a scene. Observers’ differing responses reflect their varying
values, motivations, and past experiences. In this sense, medical associations will view the scene
of a lethal injection far differently from a legislature pressing to perpetuate the death penalty.
The legal system is concerned with retribution and deterrence; the medical system is centered on
health and wellbeing.
This “inkblot” phenomenon caused some of the chaos of Morales.
anesthesiologists initially agreed to participate, they pulled out when faced with the Ninth
Circuit’s interpretation of their role; that role that reflected the court’s concern for the
constitutionality of the execution but conflicted with medical association guidelines on
participation in executions.146
When the inkblot’s pool of observers includes the whole of society – ranging from the
public to the courts to the supervising wardens – the vast array of interpretations of the lethal
injection scene becomes increasingly intricate. The Supreme Court – the ultimate arbiter of such
conundrums – refuses to even take the inkblot test. And the result is legal disarray. The
execution declines and moratoria prove it.147
A. No Medical Improvements
Concerns over the injections’s lack of medical testing initially were considered so
pronounced that Oklahoma’s lethal injection bill stalled before the state Senate’s approval of
it.148 Legislative developments indicate that lethal injection was not to be used so quickly and
confidently, if ever at all. And the Oklahoma legislature at one point considered requiring that
that injection could not supplant electrocution without “being ruled legal by the U.S. Supreme
See Morales v. Hickman, 415 F. Supp. 2d 1037, 1047 (N.D. Cal. 2006), aff’d per curiam, 438 F.3d 926 (9th Cir. 2006), cert.
denied, 126 S. Ct. 1314 (2006).
See Taylor v. Crawford, No. 05-4173-CV, 2006 WL 1779035, at *8 (W.D. Mo. June 26, 2006).
See Ga. Code Ann. § 17-10-42.1 (2006). The statute reads: “Participation in any execution of any convicted person carried
out under this article shall not be the subject of any licensure challenge, suspension, or revocation for any physician or medial
professional license in the State of Georgia.” Id.
See infra Part II.C.
See infra Part II.A & B.
See supra notes 11-13 and accompanying text.
See supra note 43.
See supra note 105 and accompanying text.
See supra note 116 and accompanying text.


Such uncertainty did not tarnish the method’s appeal. After Oklahoma adopted lethal
injection on May 11, 1977, Texas followed suit the next day and Idaho and New Mexico soon
after.150 From 1977 to 2002, thirty-seven states adhered to this adoption pattern, switching to
lethal injection in a fast-moving cascade of multi-state clusters, indicating that shared forces and
communications fueled legislative action.151 Likewise, nearly a third (eleven) of the states
changed to lethal injection in the eight-year stretch between 1994, when Virginia adopted the
method, and 2002, when Alabama did.152
Currently, the protocols in all thirty-six states that use lethal injection are modeled after
Oklahoma’s original three-drug combination: (1) sodium thiopental, (2) pancuronium
bromide,153 and (3) potassium chloride.154 Therefore, most states mirror the legal and scientific
choices that Oklahoma officials made thirty years ago. Lethal injection was not actually used,
however, until 1982, when Texas botched the execution of Charles Brooks, Jr.155 Not even the
substantial numbers of comparably botched executions that followed deterred states from
switching to the method with relative confidence and speed.156
Despite the benefits of hindsight, states did not medically improve upon the method that
consistently had resulted in documented debacles.157 As a Kentucky court recently concluded,
“there is scant evidence that ensuing States’ adoption of lethal injection was supported by any
additional medical or scientific studies . . . [rather,] the various States simply fell in line, relying
solely on Oklahoma’s protocol . . . .”158 Further passage of time has made no difference. In
2006, for example, Ohio conducted the second-longest lethal injection on record – ninety
minutes – while the longest execution (two hours) occurred in Texas in 1998.159
B. Medical Associations Respond
Recent litigation has revealed both new and long-standing positions of medical
associations toward lethal injection. These associations stress the significance of the Hippocratic
Oath160 and ethical standards debunking medical participation in executions of all kinds.161 They

See Denno, When Legislatures Delegate, supra note 14, at 92.
See id. at 100-116.
See id. at 131; Ala. Code §§ 15-18-82-82.1 (2007).
See supra note 127 (noting the inclusion of tubo-curarine and succinylcholine chloride in Oklahoma’s 1981 protocol, which
are comparable to pancuronium bromide).
See supra note 127 (referring to potassium chloride); see also infra Part III; see e.g., Nicholas K. Geranios, Lethal Injection
State’s New Killer, Journal Star (Peoria, Ill.), May 11, 1987, at B8 (“‘We based our [lethal injection] procedures on what they do
in Oklahoma and Texas,’ said Department of Corrections spokesman Nic Howell. ‘It was obvious it worked and was something
we could adapt for our work.’”).
See Steve Carrell, Execution Controversy Faces Physician, Am. Med. News, Jan. 21, 1983, at 24.
See generally Denno, When Legislatures Delegate, supra note 14 (analyzing the disregard states had for botched executions in
adopting lethal injection as an execution method).
See infra Part III.
Baze v. Rees, No. 04-CI-1094, at 2 (Franklin Cir. Ct., Ky. July 8, 2005); see also Execution Controversy Faces Physician,
Am. Med. News, Jan. 21, 1983, at 25 (noting that all three drugs were available in the first lethal injection execution in this
See Jim Provance & Christina Hall, Clark Execution Raises Lethal-Injection Issues, The (Toledo) Blade, May 4, 2006.
See Louis Lasagna, The Hippocratic Oath-Modern Version (1964), available at


range from associations with a national base – the American Medical Association,162 the
American Society of Anesthesiologists,163 the American Nurses’ Association,164 and the National
Commission on Correctional Health Care165 – to organizations representing the voices of
particular states, such as the California Medical Association166 and the North Carolina Medical
Some of these associations adopted a hands-off approach to lethal injection even prior to
this country’s first 1982 lethal injection execution. For this reason, a focus on these early
positions provides perspective on states’ confusion and ignorance surrounding lethal injection
and why this situation has persisted for so long.
1. The American Medical Association
From the start, the American Medical Association (AMA) firmly abdicated any role in
the lethal injection arena. In 1980, the AMA’s Council on Ethical and Judicial Affairs released
its first report opposing physician participation in executions, a stance the Council regularly has
updated through 2000.168 In the Council’s view, “[a] physician, as a member of a profession
dedicated to preserving life when there is hope of doing so, should not be a participant in a
legally authorized execution.”169 Although the Council’s position pertains to all methods of
execution, it is particularly applicable to lethal injection because of the method’s perceived
affiliation with the medical profession.170 The Council focused on a variety of potential aspects
of a physician’s contributions, as the following guidelines specify:


See e.g., Council on Ethical and Judicial Affairs, Am. Med. Ass’n, Code of Medical Ethics: Current Opinions with
Annotations, Op. 2.06 (2000) [hereinafter AMA Code].
See Code of Ethics E-2.06 (Am. Med. Ass’n. 2000), available at ama/pub/category/8419.html (“A
physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in
a legally authorized execution.”).
Message from Orin F. Guidry, President, Am. Soc’y of Anesthesiologists, Observations Regarding Lethal Injection (June 30,
2006), (stating that the American Society of Anesthesiologists had adopted the
American Medical Association’s (AMA’s) code of ethics regarding capital punishment in 2001).
Am. Nurses Association, Ethics and Human Rights Position Statements: Nurses’ Participation in Capital Punishment, (last visited Apr. 1, 2007) (“The American Nurses Association
(ANA) is strongly opposed to nurse participation in capital punishment. Participation in executions is viewed as contrary to the
fundamental goals and ethical traditions of the profession.”).
Standards for Health Services in Prisons P-I-08 (Nat’l Comm’n on Corr. Health Care 2003) (on file with author) (“The
correctional health services staff do not participate in inmate executions.”).
See supra note 10.
Punishment, The board adopted the AMA’s
position on capital punishment, noting, however, that “[t]he Board recognizes that N.C. Gen. Stat. § 15-190 requires the presence
of ‘the surgeon or physician of the penitentiary’ during the execution of condemned inmates. Therefore, the Board will not
discipline licensees for merely being ‘present’ during an execution in conformity with N.C. Gen. Stat. § 15-190. However, any
physician who engages in any verbal or physical activity, beyond the requirements of N.C. Gen. Stat. § 15-190, that facilitates the
execution may be subject to disciplinary action by this Board.” Id.
See AMA Code, supra note 161.
See generally David J. Rothman, Physicians and the Death Penalty, 4 J.L. & Pol’y 151 (1995) (discussing the historical role
of physicians in executions).


Physician participation in an execution includes, but is not limited to, the
following actions:
prescribing or administering tranquilizers and other
psychotrophic agents and medications that are part of the execution procedure;
monitoring vital signs on site or remotely (including monitoring
electrocardiograms); attending or observing an execution as a physician; and
rendering of technical advice regarding execution.
In the case where the method of execution is lethal injection, the following
actions by the physician would also constitute physician participation in
execution: selecting medical sites; starting intravenous lines as a port for a lethal
injection device; prescribing, preparing, administering, or supervising injection
drugs or their doses or types; inspecting, testing or maintaining lethal injection
devices; and consulting with or supervising lethal injection personnel.171
The Council’s definition of “physician participation” encompasses everything from the
most basic medically symbolic role of simply “attending or observing an execution as a
physician,” to the more involved tasks, such as “monitoring vital signs on site or remotely.”172
Such a broad brush stroke includes, of course, those intricate and medically complex facets of
lethal injection that have created problems for individuals with far less medical training, for
example, “selecting medical sites” or “prescribing, preparing, administering, or supervising
lethal injection drugs.”173 The Council’s guidelines even prohibit a physician from “consulting
with . . . lethal injection personnel,”174 an activity that could occur well before the execution,
thereby precluding the need for the doctor’s attendance. Presumably, then, when a Texas judge
in 1997 asked a testifying expert anesthesiologist to inspect in open court the syringe-viability of
an inmate’s veins during this country’s first evidentiary hearing on lethal injection,175 that expert
violated the Council’s ethical guidelines by doing so. Such a violation would hold even though
the anesthesiologist’s sole purpose for testifying was to educate the court about the gross medical
deficiencies underlying the state’s lethal injection procedure.176
In essence, the AMA maintains that a physician’s role in a lethal injection execution
should be limited to the pronouncement of death,177 a position consistent with a range of medical
associations.178 According to the AMA, then, many state statutes and lethal injection protocols
are unethical.179 But because the AMA Council’s guidelines are simply ethical dictates and not
legally enforceable, it is difficult to assess how much weight they carry. Most physicians in this
country, including most anesthesiologists, are not even members of the AMA.180 Likewise, it

AMA Code, supra note 161.
See Exhibit of Application for Post-Conviction Writ of Habeas Corpus, ex parte Miguel A. Richardson, No. 81-CR-1548
(Tex. Crim. App. Dec. 16, 1996).
See supra note 171 and accompanying text (interpreting the AMA Council’s guidelines).
See AMA Code, supra note 161.
See supra notes 163-67.
See Denno, When Legislatures Delegate, supra note 14, at 166-69.
See Yuji Noto, American Medical Association (AMA) and its Membership Strategy and possible Applications for the Japan
Medical Association (JMA) (June 1999); see also Am. Med. Ass’n Physician Masterfile, Dec. 2000,


does not appear that any medical association, including the AMA, has disciplined a physician for
participating in a lethal injection execution,181 although this possibility now is being raised in
North Carolina.182 In light of this backdrop, medical associations may have difficulty convincing
states to take seriously their perception of lethal injection.
The AMA’s stance also might not be particularly realistic. Recent revelations show that
the extent of physician participation in executions has been substantially underestimated.183
Likewise, this author’s surveys of lethal injection statutes and protocols indicate that a number of
states conceded a certain level of physician participation.184 Potentially, then, the AMA’s
position reflects the ideology of a bygone era that preceded discovery of the wide-ranging
hazards of lethal injection executions.185 But, as the following discussion suggests, medical
associations willingly turned a blind eye to warnings both about lethal injection’s problems and
the physicians who were involved with them, with very few exceptions.
2. A Breach of Trust
In 1994, physician and human rights organizations released Breach of Trust, a startling
report detailing the extent of physician participation in executions in the United States and the
ethical questions it invoked.186 The discovery after the 1990 Illinois lethal injection of Charles
Walker that three physicians supervised the creation of Walker’s intravenous line, as well as his
entire execution, prompted the Breach report.187 Thereafter, medical organizations made fervent
efforts to prevent further physician involvement in Illinois executions, but failed.188 The Illinois
legislature quickly passed a bill providing that all individuals participating in Illinois executions
would be anonymous.189 Subsequent protests from Illinois physician groups went unheeded,
bringing “into sharp focus the discrepancy between medical ethics and state laws on this
The Breach report’s perspective on the law-medicine conflict was just the beginning of a
string of stunning revelations. Page after page would document that “physicians continue to be
involved in executions, in violation of ethical and professional codes of conduct,” that state law
frequently mandated the involvement, and that “[e]ven when state laws are vague about requiring
physician participation . . . in practice, physicians are often directly involved in the execution
process.”191 The report’s criticisms were unrelenting, and justified: “[E]xecution is not a

See Zitrin v. Ga. Composite State Board of Medical Examiners, et. al. No. S07A0318 (Ga. 2007)
Complaint, N.C. Dep’t of Corr. v. N.C. Med. Board (alleging that executions are not medical procedures regardless of
participation by physicians or EMTs and, therefore, requesting a preliminary injunction preventing the N.C. Medical Board from
taking action against doctors who participate and requesting the court declare that executions are not medical procedures).
See infra Part II.C.
See infra Part II.D.
Kenneth Baum, “To Comfort Always”: Physician Participation in Executions, 5 NYU J. Legis. & Pub. Pol’y 47, 58-67 (2001)
(detailing the reasons why arguments against physician participation in executions are outdated).
The Am. Coll. of Physicians Et Al., Breach of Trust: Physician Participation in Executions in the United State (1994)
[hereinafter Breach of Trust].
See id. at 1.
See id.
See id.
Id. at 3.


medical procedure, and is not within the scope of medical practice.”192 While states promoted
“the appearance of humane, sterile or painless executions,” the Breach report was alarmed that
physicians increasingly would be lured into the process, thereby compromising their medical
commitments to heal.193 While physicians “are entrusted by society to work for the benefit of
their patients and the public . . . [t]his trust is shattered when medical skills are used to facilitate
state executions.”194 Likewise, offering the execution process a substantial degree of “medical
legitimacy,”195 raised deeper concerns about the “larger picture,” specifically, the doctor’s role in
promoting state-sanctioned executions: “[T]he physician is taking over some of the
responsibility for carrying out the punishment and in this context, becomes the handmaiden of
the state as executioner.”196 While physicians might help decrease the pain of executions, they
also perform “under the control of the state, doing harm.”197
As Breach of Trust indicated, physicians contribute far more to lethal injection than any
other execution method.198 An examination of physician participation today suggests that the
involvement is more extensive than even the Breach report could have been predicted.
C. Physicians Still Participate
Physicians have a long-standing relationship with lethal injection. For example, Jay
Chapman, M.D., basically originated the procedure.199 In turn, Ralph Gray, M.D., the medical
chair of the Texas prison system, was present at the first lethal injection execution, that of
Charles Brooks, Jr.200 That procedure, which Gray considered highly problematic,201 typified the
quandary medical professionals continue to face. Gray had checked the veins in Brooks’ arms
and predicted difficulties because of Brooks’ heavy drug use.202 Yet, Gray would not assist
directly in the execution even though “tempted” when the non-physician employees “repeatedly
missed” Brooks’ veins and Brooks started bleeding.203 Gray’s response to colleagues criticizing
his decision to check Brooks’ arms is understandable: “‘I really don’t see what I did wrong. I
wanted things to go properly.’”204
Other physicians also voiced concern about lethal injection soon after its first use. Jack
Kevorkian, M.D., for example, was a strong initial proponent of lethal injection because the
method enabled inmates to donate their organs if they desired.205 At the same time, Kevorkian

Id. at 38.
See generally id.(conducting a nationwide survey of physician participation in lethal injection executions).
See Carrell, supra note 155, at 24.
See id. at 24-26.
See id. at 24.
Id. at 25.
Id., at 24.
See Jack Kevorkian, Prescription: Medicine, the Goodness of Planned Death 17-99 (1991) [hereinafter Prescription]
(emphasizing that the great majority of death row inmates want to donate their organs in order to "repay a social debt" despite
anti-donation arguments by the medical profession); Jack Kevorkian, Opinions on Capital Punishment, Executions and Medical


cautioned early on that “only the highest degree of technical competence should be relied upon
to insure trouble-free lethal injection, to avert unnecessary suffering, and, even more important,
to minimize the potential danger of inadvertent suffocation of the condemned.”206 Likewise, in a
small unscientific survey Kevorkian conducted for a medical journal article, he found that
medical personnel would choose, if considering competency only, a doctor to administer their
own lethal injection if they were to be executed.207
Kevorkian’s heed about lethal injection’s hazards might not have garnered serious
attention because of his other controversial stances.208 At the same time, additional physicians
have been similarly dismissed. In 1990, for example, Lawrence Egbert, M.D., then a Professor
of Anesthesiology at the University of Texas Southwestern Medical School,209 moved to vote
against the use of lethal injections in executions during the annual meeting of the prestigious
Association of University Anesthesiologists.210 Egbert long had criticized the administration of
lethal injections and the particular drugs that injection used.211 Yet, the matter was tabled, and
never addressed again212 until the ASA’s president raised it in 2006213 in response to the swirl of
media attention and caselaw.
Nonetheless, Egbert’s arguments impressed another member at the same meeting,
Edward A. Brunner, M.D., Ph.D., then Chair of the Department of Anesthesia at Northwestern
University Medical School.214 Both Brunner and Egbert eventually became the first two
physicians to testify as experts in some of the earlier evidentiary hearings on the constitutionality
of lethal injection.215 Because so little was known about lethal injection executions at the time,
Brunner and Egbert focused on the problematic application of injection’s three chemicals.216
Not until the start of the twenty-first century would attorneys gather more details about
the dearth of executioner training and the conditions of lethal injection executions.217 This added
information has opened another chapter of testifying medical experts in lawsuits challenging
lethal injection executions. The two primary expert-M.D.’s are Mark Dershwitz, a professor at

Science, 4 Med. & L. 515, 515-33 (1985) [hereinafter Opinions on Capital Punishment] (contending that lethal injection is the
preferred execution method and that inmates should be allowed to donate their organs).
Kevorkian, Prescription, supra note 205, at 63.
Kevorkian, Opinions on Capital Punishment, supra note 205, at 522.
See generally Neal Nicol, Harry Wylie, & Jack Kevorkian, Between Dying and Dead: Dr. Jack Kevorkian’s Life and the
Battle to Legalize Euthanasia (2007) (discussing Kevorkian’s life and career and all of its controversies).
Telephone Interview with Lawrence Egbert, M.D., M.P.H, President, Maryland chapter of Physicians for Social
Responsibility (Jan. 24, 2007).
See Lawrence D. Egbert, Physicians and the Death Penalty, America, Mar. 17, 1998, at 16.
See Telephone Interview with Lawrence Egbert, M.D., M.P.H, President, Maryland chapter of Physicians for Social
Responsibility (Jan. 24, 2007).
See Orin F. Guidry, Am. Soc’y of Anesthesiologists, Message from the President: Observations Regarding Lethal Injection,
June 20, 2006, (last visited Mar. 9, 2007).
Telephone Interview with Edward A. Brunner, M.D., Ph.D., Retired Chair, Dep’t of Anesthesiology, Northwestern Univ.
Med. School (March 19, 2007).
See Denno, Getting to Death, supra note 14, at 373-87 (discussing the early lethal injection litigation and Brunner’s and
Egbert’s contributions).
See id.
See infra Parts III & IV.


the University of Massachusetts Medical School,218 and Mark Heath, a professor at Columbia
Presbyterian Medical Center.219 While the two often disagree, the contributions of both – most
particularly Heath – are transforming the lethal injection landscape.
New evidence in 2006 and the start of 2007 again reveals a surprising degree of physician
participation in lethal injection executions that even the Breach of Trust report never would have
anticipated. Such involvement ranged from the disturbing revelations of Missouri’s “Dr. Doe,”
who began performing lethal injections in the mid-1990s,220 to the acknowledgement of Carlo
Musso, M.D., a Georgia physician, that he has maintained a three-year presence in that state’s
injection executions.221 Most recently, in March 2007, Obi Umesi, a North Carolina M.D.,
admitted that he had attended at least two of the state’s latest executions but, for ethical reasons,
failed to monitor the inmate's consciousness in both, contrary to a federal judge’s expectations.222
Not to be discounted are the handful of anonymous physicians and a nurse who were interviewed
as part of a Harvard Medical School professor’s 2006 article about “why physicians participate
in executions.”223
The compelling stories of these medical professionals highlight the “inkblot” nature of
how some physicians view the lethal injection scene. According to one anonymous doctor, Dr.
C, for example, the state, of which he was a citizen, needed his services to perform executions
humanely: “[J]urors . . . have made a decision. And if I live in that state and that’s the law, then
I would see it as being an obligation to be available.” 224 Like those medical care personnel who
responded to Kevorkian’s survey,225 Dr. C could empathize with a desire for condemned
individuals to have the most competent lethal injection possible.226 Dr. Musso, the only
physician in the 2006 article who revealed his name, echoed the perspective that doctors were
not deciding who gets the death penalty. “This is an end-of-life issue, just as with any other
terminal disease. It just happens that it involves a legal process instead of a medical process.”227
In turn, all the article’s interviewed professionals could agree with Dr. B: “If the doctors and
nurses are removed, I don’t think [lethal injections] could be competently or predictably
Of course, these positions conflict with the AMA’s stance on the matter: “While
physician participation may potentially add some degree of humaneness to the execution of an
individual, it does not outweigh the greater harm of causing death to the individual.”229 The

See Mark Dershwtiz – BMP Faculty – UMass Medical School,
See Columbia University Medical Center Faculty Profiles,
See Roko, supra note 28, at 2791-92.
See Gawande, supra note 7, at 1228.
See Andrea Weigl, Did Doctor Stand Idle or Monitor Executions?, News & Observer (Raleigh, North Carolina), March 29,
2007, at A1.
See generally Gawande, supra note 7, at 1223-38.
224 1226.
See supra note 207 and accompanying text.
See Gawande, supra note 7, at 1226.
Id. at 1228.
Id. at 1226.
AMA Code, supra note 161.


ASA president’s views were even stronger, stressing that the medical profession has no
obligation to rescue either American society or the legal system.230
D. Physician Participation in Context
The Breach report’s nationwide statutory analysis never has been updated, even though it
is cited frequently. This section provides such an update, with a brief 2007 overview of modern
statutes’ current designation of physician participation, or a lack thereof. And the results, once
again, are striking. Consistent with the Breach report’s assessment, all but nine of the thirtyseven lethal injection states mention some kind of medical or physician involvement. 231 At the
same time, these statutes vary tremendously from state to state, suggesting that views on
physician involvement are mired in value-laden interpretations of the lethal injection scene.
While the statutes differ substantially in their wording, eleven states mention the presence
of a physician at a lethal injection execution.232 Ten states have statutory language stating that a
physician pronounces or certifies death.233 Nine states provide that lethal injections do not
constitute the practice of medicine.234 And in three states, the involvement of physicians is
optional.235 In Illinois, the statute makes it explicit that medical personnel are not allowed to
participate in executions.236 New Jersey’s statute has a similar provision, but does allow a
physician to sedate an inmate and to be present at an execution.237
In the majority of states, the existence of statutory language concerning medical
personnel indicates that medical association guidelines and the Breach report have had minimal
impact. In general, states – either ignorant of or with disregard for ethical guidelines – include

See Guidry, supra note 34.
Those eight states are Arkansas, Connecticut, Kansas, Maryland, Missouri, Nevada, Pennsylvania, Tennessee, and Utah. For
state statutes on physician participation, see Ala. Code §§ 15-18-82.1 (2007); Ariz. Rev. Stat. Ann. § 13-704 (2006); Cal. Penal
Code §§ 3604, 3605 (West 2007); Colo. Rev. Stat. Ann. §§ 18-1.3-1204, 18-1.3-1206 (West 2006); Del. Code Ann. tit. 11 § 4209
(2007); West’s F.S.A. § 922.105 (West 2007); Ga. Code Ann., §§ 17-10-38, 17-10-41 (2006); Idaho Code § 19-2716 (2006); 725
Ill. Comp. Stat. Ann. 5/119-5 (West 2006); Ind. Code Ann. § 35-38-6-6 (West 2006); Ky. Rev. Stat. Ann. §§ 431.220-250 (West
2006); La. Rev. Stat. Ann. §§ 15:569-570 (2006); Miss. Code Ann. §§ 99-19-51, 99-19-55 (2006); Mont. Code Ann. § 46-19103 (2005); N.H. Rev. Stat. §§ 630:5-6 (2006); N.J. Stat. Ann. §§ 2C:49-2, 2C:49-3, 2C:49-8, 2C:49-7 (West 2007); N.M. Stat. §
31-14-15 (2006); N.C. Gen. Stat. Ann. § 15-192 (West 2006); Ohio Rev. Code Ann. § 2949.25 (West 2007); Okl. Stat. Ann. tit.
22, §§ 1014, 1015 (West 2006); Or. Rev. Stat. §§ 137.473, 137.476 (2005); S.C. Code Ann. § 24-3-560 (2006); S.D. Cod. Laws §
23A-27A-32 (2006); Tex. Code Crim. Proc. Ann. art. § 43.20 (Vernon 2006); Va. Code Ann. § 53.1-234 (West 2006); Wash.
Rev. Code Ann. § 10.95.180 (West 2007); Wyo. Stat. Ann. § 7-13-904 (2006).
Those states are Colorado, Indiana, Kentucky, Louisiana, Mississippi, New Jersey, New Mexico, Ohio, Oklahoma, Texas, and
Those states are Colorado, Idaho, Kentucky, Mississippi, North Carolina, Oklahoma, South Carolina, South Dakota,
Washington, and Wyoming.
Those states are Alabama, Delaware, Florida, Georgia, New Hampshire, New Jersey, Oregon, and South Dakota.
Those states are Montana (“the person administering the injection need not be a physician, registered nurse, or licensed
practical nurse licensed or registered under the laws of this or any other state”), New Hampshire (same), and South Dakota
(same). See Mont. Code Ann. § 46-19-103 (2005), N.H. Rev. Stat. §§ 630:5-6 (2006), S.D. Cod. Laws § 23A-27A-32 (2006).
The statute reads in relevant part: “The Department of Corrections shall not request, require, or allow a health care practitioner
licensed in Illinois, including but not limited to physicians and nurses, regardless of employment, to participate in an execution.”
725 Ill. Comp. Stat. Ann. 5/119-5 (West 2006).
See N.J. Stat. Ann. § 2C:49-3 (West 2007). “The commissioner shall designate persons who are qualified to administer
injections and who are familiar with medical procedures, other than physicians, as execution technicians to assist in the carrying
out of executions, but the procedures and equipment utilized in imposing the lethal substances shall be designed to ensure that the
identity of the person actually inflicting the lethal substance is unknown even to the person himself.” Id.


physicians in their lethal injection statutes. Illinois’ statute demonstrates the potential way
legislatures can compose language to comport with such guidelines. But, for now, Illinois is the
Indeed, three states have statutory provisions that fly in the face of the medical ethical
guidelines. These states ban disciplinary action, such as license suspension or revocation,
against doctors who participate in executions.238 One more state, North Carolina, is considering
a similar statutory provision.239 This increasingly bitter battle between law and medicine now
has hit the courts, with medical boards facing lawsuits in both Georgia and North Carolina.240
In light of the extent of physician involvement, the current controversy swirling lethal
injection could be a form of déjà vu. While Breach was published a dozen years before the
recent revelations indicating the difficulties surrounding lethal injections,241 it just as well could
have been written this year. Yet, the litigation of today is not merely recycling an old dilemma.
Even more is at stake now in terms of the physician’s role.
First and foremost, the recommendations that Breach proposed never have been
followed. Just the opposite has occurred. According to Breach, “[t]he law and regulations of all
death penalty states should incorporate AMA guidelines on physician participation,” particularly,
“laws mandating physician presence and pronouncement of death should be changed to
specifically exclude physician participation.”242 Likewise, “[l]aws should not be enacted that
facilitate violations of medical ethical standards (such as anonymity clauses) [because] [t]he
medical profession cannot regulate and police itself properly if laws protect violators from
scrutiny and review.”243 Yet, as this Part shows, many lethal injection statutes have embraced
the physician role or become vaguer about it,244 perhaps confirming the Breach report’s own
conclusion that, the vaguer the statute, the more likely the physician participation.245
While the Breach report’s impact appears negligible,246 the questions the report raises
have become only more integral. Since 1994, for example, an additional third of the death
penalty states have adopted injection; with rare exception, any other execution method is a
relic.247 As such, further revelations about injection indicate a far more complicated and
troublesome process than any legislature, court, or physician’s group possibly could have
realized.248 According to the AMA Council, for example, medically trained, non-physicians

Those states are Arizona, Georgia, and Oregon.
See H.B. 442, Gen Assem., 2007 Sess. (N.C.).
See Complaint, N.C. Dep’t of Corr. v. N.C. Med. Board, 07-CV-003574 (Sup. Ct. Wake Co. Mar. 6, 2007); Complaint, Zitrin,
et al., v. Ga. Composite Board of Med. State Examiners, 1-2005-CV-103905 (Sup. Ct. Fulton Co., July 2005).
See infra Part IV.
Breach of Trust, supra note 185, at 45.
Id. at 45-46.
See infra Part IV.
See supra note 191 and accompanying text.
See generally Breach of Trust, supra note 185. One explanation may be that the report was speaking for a minority of the
medical profession, especially since two of the report’s four authors are generic anti-death penalty groups; other national-based
organizations, such as the AMA or the ASA, were not even mentioned. See id. at ix.
See supra note 40.
See infra Parts III, IV.


could perform the technical aspects of executions – thereby ensuring humanity to the procedure
(albeit relatively less of it) without physician involvement.249 Yet, the Council’s conclusions
were made in 1993.250 The presumption of many states that non-physician personnel can serve
as apt substitutes for physicians has proven inaccurate time and time again.251
In Morales, Judge Fogel agreed that “[b]ecause an execution is not a medical procedure,
and its purpose is not to keep the inmate alive . . . the Constitution does not necessarily require
the attendance and participation of a medical professional.”252 Judge Fogel also recognized,
however, that such participation could increase the odds of a humane procedure, a conclusion
that strikes at the core of the controversy: “[T]he need for a person with medical training would
appear to be inversely related to the reliability and transparency of the means for ensuring that
the inmate is properly anesthetized . . . .”253 After all, Eighth Amendment doctrine centers on
risk – the risk of “unnecessary and wanton infliction of pain”254 – not foolproof perfection.
While even the participation of medical personnel does not guarantee a humane execution,255 the
greater the availability of medical expertise, the more likely the procedure will be humane and
meet constitutional commands.256
In lethal injection litigation, protocols take center stage. Courts have not defined the
meaning of “protocol,” but rather use the term broadly. In Morales, for example, California’s
protocol was multifaceted; the parties discussed not only whether physicians should participate
in executions, but also which drugs and doses should be used as well as under what kinds of
A pivotal debate in Morales, one with constitutional implications, focused on the
interpretation of a key, five-word, phrase: “five grams of sodium thiopental.”258 Why was this
measurement so important and what did it mean? According to the state’s anesthesiologist
expert, the phrase signified that an execution under California’s protocol would be
unquestionably humane.259 Such a large amount of this barbiturate quickly would render
unconscious even the most drug-resistant inmate, irrespective of any effect the other two drugs
would have.260 The plaintiff’s expert agreed in theory.261 Yet, that expert emphasized that the

See Council on Ethical and Judicial Affairs, Am. Med. Ass’n, Council Report: Physician Participation in Capital
Punishment, 270 JAMA 365, 366 (1993) (“Even when the method of execution is lethal injection, the specific procedures can be
performed by nonphysicians with no more pain or discomfort for the prisoner.”).
See id.
See Denno, When Legislatures Delegate, supra note 14, at 90-128, app. 1, tbl. 17.
Morales v. Tilton, 465 F. Supp. 972, 983 (N.D. Calif. 2006).
Farmer v. Brennan, 511 U.S. 825, 842 (1994). For an extensive analysis of Eighth Amendment standards in the context of
execution methods, see generally, Denno, When Legislatures Delegate, supra note 14, and Denno, Getting to Death, supra note
See Taylor v. Crawford, No. 05-4173-CV, 2006 WL 1779035, at *6 (W.D. Mo. June 26, 2006).
See Morales, 465 F. Supp. at 983.
See generally id.
Id. at 983.
See Morales, 415 F. Supp. at 1043-44.
See id.


practice of California’s lethal injection procedure would heighten the risk that the inmate never
would receive all five grams.262 Therefore, the execution would be inhumane, due to
problematic injections, leaks, or mistakes.263 As one California executioner explained during
testimony in Morales, “sh-t does happen” when executions are conducted, no matter what the
protocol says in writing.264
In 2001, this author conducted a nationwide study (“Study 1”) of the lethal injection
protocols for all thirty-six states that used the method.265 The study focused on a number of key
criteria common to many protocols, including the types and amounts of chemicals that are
injected; the selection, training, and qualifications of the lethal injection team; and the
involvement of medical personnel. One of the study’s most problematic findings, however, was
that the criteria set out in many of the protocols were far too vague to allow adequate assessment.
When the protocols did offer details, such as the amount and type of chemicals that executioners
inject, they often revealed striking errors and a shocking level of ignorance about the
procedure.266 The study concluded that such inaccurate or missing information heightened the
likelihood that a lethal injection would be botched and suggested that some states were not
capable of executing an inmate constitutionally.267
Four years later, this author conducted a second nationwide survey (“Study 2”) to
determine if states had changed their protocols during the years in which lethal injection
litigation gained traction.268 The results of this study, published here for the first time, focus on
the protocols as they existed in 2005. This second survey provides a snapshot of lethal injection
protocols at a key point in time – at the cusp of the increased scrutiny of protocols, but untainted
by the onslaught of lethal injection challenges starting in 2006.
Lethal injections are far more complicated than the image of an inmate simply falling
asleep might suggest. No “national consensus” exists on the specifics of how to kill someone,
only on the general method of execution. 269 Likewise, with the exception of Judge Fogel and a
few other engaged courts,270 the entities most responsible for implementing the state’s death
sentence never want to be associated with the details of it – not the legislatures, not the courts,
and, most certainly, not the Supreme Court. Primarily, the matter is left in the hands of
department of corrections personnel, who have little-to-no expertise, and depend on unreliable
advice about how lethal injections should be conducted.271 Yet, every element of a protocol

See id. at 1044.
See id.
See id.
See Morales v. Tilton, 465 F. Supp. 972, 979 (N.D. Cal. 2006).
See generally Denno, When Legislatures Delegate, supra note 14.
See id. at 90-128.
See id. at 128.
See infra Part IV.
For a discussion of the meaning of “consensus,” see Atkins v. Virginia, 536 U.S. 304, 316, 316 n.21 (2002), considering
legislation prohibiting the practice, decreasing enforcement of legislation that permits practice, and the opinions of professional
organizations and society as a whole in determining whether a practice is “unusual” because a national consensus has developed
against it.
See infra Part IV.
See, e.g., Morales v. Tilton, 465 F. Supp. 972, 979 (N.D. Cal. 2006).


could affect whether an execution involves the risk of “unnecessary and wanton infliction of
In essence, the technical terms of lethal injection protocols implicate Eighth Amendment
standards when implemented. In light of the significance of this information, however, states
have scrambled in wildly different directions because they do not know which direction is right.
Nor do they attempt to find out. Some states have changed their statutes to accommodate the
terms of the protocol. Other states have modified their protocols to fortify the state’s use of
lethal injection against constitutional attack. And yet another group of states has done nothing,
leaving their statutes and protocols the same – inaction that does not indicate constitutional
viability, but rather stubborn adherence to the status quo.
A. Lethal Injection Statutes
By 2001, all death penalty states in this country had switched to lethal injection, either
entirely or as an option, with two exceptions.273 In 2002, Alabama changed from an
electrocution-only execution state to a state that that allows inmates to choose between
electrocution and lethal injection.274 Nebraska still applies just electrocution.275
Only recently, however, has any state substantially changed the language of its lethal
injection statute. In the early part of 2007 the powerful effects of snowballing litigation resulted
in such statutory changes in two states – South Dakota276 and Wyoming.277 Both states enacted
legislative changes to correspond more closely to the actual injection procedure. While both
states started with identical statutes, they went in opposite directions. Neither state’s revision is
quite explicable or adequate. Wyoming’s statute became more specific – naming the three lethal
injection chemicals to conform to the state’s protocol.278 In contrast, South Dakota’s statute


See Gregg v. Georgia, 428 U.S. 153, 173 (1976); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947) (plurality
See supra note 39-41.
See Ala. Code § 15-18-82.1 (2006). Therefore, Alabama is in this author’s 2005 study although it was not in the 2001 study.
While the 2005 study adds Alabama, New York is not included in this study. The state, which rendered its death penalty
unconstitutional in 2004 (see People v. Lavelle, 817 N.E.2d 341, 367 (N.Y. 2004)), is not in the 2005 study although it was in the
2001 study.
See supra note 41.
S.D. Cod. Laws § 23A-27A-32 (2006). The South Dakota governor stayed the execution of a condemned inmate on the day
of the execution after attorneys for the inmate pointed out a discrepancy between the state’s lethal injection statute and the
information a spokesman for the Department of Corrections had provided for the survey of lethal injection protocols published in
this author’s 2002 article in the Ohio State Law Journal. See Nestor Ramos & Dan Haugen, Law Flawed, Death Denied: Hours
Before Execution A Reprieve, Argus (S.D.) Leader, Aug. 30, 2006. South Dakota’s statute mentioned the use of only two drugs,
but the spokesman had stated that the protocol required three drugs. Compare S.D. Codified Laws § 23A-27A-32 (2006) with
Denno, When Legislatures Delegate, supra note 14, at 251.
Wyo. Stat. Ann. § 7-13-904 (2006).
Wyoming’s statute became more specific, naming three chemicals to conform with the state’s protocol. See id. Like many
states (including Oklahoma), Wyoming’s original lethal injection statute referred only to two chemicals – “an ultra-short acting
barbiturate in combination with a chemical paralytic agent.” Id. Yet, the state’s protocol specified three chemicals, including
potassium chloride. See Denno, When Legislatures Delegate, supra note 14 at 260. The 2007 legislative change thereby added
the phrase, “. . . and potassium chloride or other equally effective substances sufficient to cause death . . .” Wyo. Stat. Ann. § 713-904 (2006).


became more general – simply referring to “the intravenous injection of a substance or
substances in lethal quantity.”279
The comparison between Wyoming and South Dakota demonstrates the inconsistent
reactions of states to the threat of lethal injection botches. Wyoming’s statute provides more
information, giving more guidance to corrections personnel and decreasing the power delegated
to them by specifying the kinds of chemicals to be used. Therefore, the legislature controls more
of the decision making. In contrast, the South Dakota legislature delegates nearly all power,
giving the warden considerable control
Both types of changes are problematic. At the height of lethal injection litigation, the
Wyoming legislature adopted a three-drug regimen that has been questioned for years and is, in
California, currently unconstitutional.280 South Dakota’s approach also is troublesome,
combining the over-delegation of authority with gaps in information – the same combination that
has created so many of the difficulties with lethal injection. Instead of attempting to rectify the
conflict, South Dakota retreated into greater secrecy, illustrating the common tendency for states
to withhold when constitutional challenges appear threatening.
B. The Public Availability of Protocols
Since Study 1, states have withdrawn even more information from public scrutiny. In
Study 2, states provided as little information about their protocols as possible, an indication of
the validity of the Morales court’s concern about “transparency.”281 States never have been
forthcoming about how they perform lethal injections; remarkably, however, they now reveal
less than ever before. States likely withhold crucial details because, almost invariably, the more
data states reveal about their lethal injection procedures, the more those states demonstrate their
ignorance and incompetence. The result is a perpetual effort by states to maintain secrecy about
all aspects of the execution.282
For example, Study 2 showed that only six of the thirty-six states provided complete
public protocols, offering basic information about how they conducted their lethal injections. On
its own, this finding was dramatic. In comparison to Study 1, this finding is extraordinary. The
number of states with complete public protocols fell to less than one-third of the 2001 numbers –
from nineteen states in 2001 to six states in 2005.283 Despite the increasing recognition of the

South Dakota, which had the identical two-chemical wording in its statute as Wyoming (“an ultra-short acting barbiturate in
combination with a chemical paralytic agent”), made its statutory information more vague: “The punishment of death shall be
inflicted by the intravenous injection of a substance or substances in lethal quantity.” H.B. 1175, S.D. Leg. (Feb. 23, 2007) (An
Act to Provide for the Substances Used in the Execution of Sentence of Death and to Allow the Choice of the Substances Used
in an Execution Under Certain Circumstances). In addition, the revised statute clearly delegates the decision-making to the
department of corrections, adding that “[t]he warden . . . shall determine the substances and quantity of substances used for the
punishment of death.” Id.
See Morales v. Tilton, 465 F. Supp. 972, 981 (N.D. Cal. 2006).
See infra Part III.B.
Those states are Colorado, Connecticut, Georgia, New Mexico, Oregon, and Washington. See infra app. 1. Compare id. with
Denno, When Legislatures Delegate, supra note 14, at app. 1, tbl. 19. All six of those states with public protocols in 2005 had
public protocols in 2001. Compare infra app. 1 with Denno, When Legislatures Delegate, supra note 14, at app. 1, at 181, tbl. 19.


significance of protocols (or perhaps because of it), states have released less information over the
This lack of information makes it difficult – if not impossible – to evaluate the
constitutionality of lethal injection on any level, without further investigation. For example, in
Study 1, department of corrections officials asserted that the lethal injection protocols for four
states were confidential, and could not be revealed.284 In Study 2, the number of states claiming
confidentiality increased fourfold (to sixteen states), while two states said protocols did not
exist.285 In other words, one-half (eighteen) of the states that currently apply lethal injection do
not allow any evaluation of the protocol, either because the information is confidential or
nonexistent. An additional ten states had “limited”286 or “somewhat limited”287 protocols that
gave some information, but not enough to determine how lethal injection is applied.
C. Changes in Lethal Injection Protocols
When available, the protocol information on lethal injection chemicals is disturbing.288
Because of the trend toward confidentiality, however, fewer states provided data on which
chemicals they use. In Study 1, twenty-nine (80 percent) of the states surveyed disclosed
chemical details. In Study 2, twenty-seven states (75 percent) provided such information.289 The
contrast is more acute than it seems because some states that had revealed the information in

Of those states, five states changed from a public protocol to a confidential protocol: Idaho, Illinois, Montana, North Carolina,
and Texas. Compare infra app. 1 with Denno, When Legislatures Delegate, supra note 14, at app. 1, at 181, tbl. 19. An
additional four states with public protocols in 2001 did not have protocols at all in 2005. Compare infra app. 1 with Denno,
When Legislatures Delegate, supra note 14, at app. 1, at 181, tbl. 19. New Jersey’s protocol was under revision in 2005; New
York’s highest court declared the death penalty unconstitutional in 2004; New Hampshire and Wyoming both were listed as
having partially private protocols in 2001, but are listed as not having a protocol for 2005. Compare infra app. 1 with Denno,
When Legislatures Delegate, supra note 14, at app. 1, at 181, tbl. 19. And six states (Arizona, Arkansas, California, Florida,
Oklahoma, and South Dakota ) moved from a public protocol to partially private protocol. Compare infra app. 1 with Denno,
When Legislatures Delegate, supra note 14, at app. 1, at 181, tbl. 19. Only one state, Virginia, provided more information in
2005 than in 2001, moving from a confidential protocol to a partially private protocol. Compare infra app. 1 with Denno, When
Legislatures Delegate, supra note 14, at app. 1, at 181 tbl. 19.
See Denno, When Legislatures Delegate, supra note 14, at 116 n.369 (The four states were Nevada, Pennsylvania, South
Carolina, and Virginia).
See infra app. 1. (Alabama, Delaware, Idaho, Illinois, Indiana, Kentucky, Mississippi, Missouri, Montana, Nevada, North
Carolina, Ohio, Pennsylvania, Texas, and Utah).
See infra app. 1 (Arizona, Arkansas, Kansas, Louisiana, Maryland, Oklahoma, Tennessee, and Virginia). In the 2001 survey,
Kansas and Kentucky had indicated that information did not exist. See Denno, When Legislatures Delegate, supra note 14, at
app. 1, at 146, tbl. 11.
See infra app. 1 (California and Florida).
In 2005, twenty-seven states provided information on the drugs used in lethal injections. See infra app. 1. Twenty-nine states
had disclosed this information in 2001. See Denno, When Legislatures Delegate, supra note 14, at app. 1, at 146, tbl. 11. In
2005, twenty-six states used a lethal combination of sodium thiopental, pancuronium bromide, and potassium chloride. See infra
app. 1. Those states are Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas,
Kentucky, Louisiana, Maryland, Missouri, Montana, New Mexico, North Carolina, Ohio, Oregon, Pennsylvania, South Dakota,
Tennessee, Texas, Utah, Virginia, and Washington. See infra app. 1.
In 2005, twenty-seven states provided information on the drugs used in lethal injections. See infra app. 1. In turn, twenty-nine
states had disclosed this information in 2001. See Denno, When Legislatures Delegate, supra note 14, at app. 1, at 146, tbl. 11.
In 2005, twenty-six states used a lethal combination of sodium thiopental, pancuronium bromide, and potassium chloride. See
infra app. 1. Those states are: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Indiana,
Kansas, Kentucky, Louisiana, Maryland, Missouri, Montana, New Mexico, North Carolina, Ohio, Oregon, Pennsylvania, South
Dakota, Tennessee, Texas, Utah, Virginia, and Washington. See id. In 2005, Oklahoma was the sole exception. See id.


Study 1 did not do so in Study 2, and vice-versa.290 Yet, in both studies, with two negligible
exceptions,291 all states that reported their lethal injection drugs shared the same three-chemical
combination originally created in Oklahoma.292
Bucking the trend to provide less information, thirteen, or nearly half, of the twentyseven states that revealed the chemicals used in lethal injections also disclosed the quantities of
those chemicals in 2005.293 Previously, in 2001, only nine (less than one-third) of the states had
disclosed this information.294

For example, six states (Delaware, Idaho, Illinois, Mississippi, New Jersey, and Wyoming) that had provided information on
the combination of chemicals used in lethal injections in 2001 did not do so in 2005. Compare Denno, supra note 14, at app. 1,
at 146, tbl. 11 with infra app. 1. This figure of six does not include New York, which was in the survey sample in 2001 but not in
the survey sample in 2005 because the death penalty had been declared unconstitutional in New York in 2004. See supra note
274. Four states that had not provided data in 2001 on the chemicals used did disclose such information in 2005 (Kansas,
Kentucky, Pennsylvania, and Virginia). Compare Denno, supra note 14, at app. 1, at 146, tbl. 11 with infra app. 1. This figure
does not include Alabama, which switched to lethal injection as an alternative method of execution in the interim period between
studies. See supra note 274. Information for two states, Kansas and Kentucky, did not exist in 2001, but was provided in 2005.
Compare Denno, supra note 14, at app. 1, tbl. 11 with infra app. 1. Information for Pennsylvania and Virginia was confidential in
2001, but those states provided the information in 2005. Compare Denno, supra note 14, at app. 1, tbl. 11 with infra app. 1.
The two states that deviated from their 2001 protocols are easily explained. Oklahoma substituted vecuronium bromide in
2005 for pancuronium bromide in 2001. Compare Denno, When Legislatures Delegate, supra note 14, at app. 1, at 146, tbl. 11
with infra app. 1. North Carolina did not mention potassium chloride as part of its combination in 2001, but listed it as the third
chemical in 2005. Compare Denno, supra note 14, at app. 1, tbl. 11 with infra app. 1. Oklahoma’s substitution is not significant
because vecuronium and pancuronium are very similar compounds. See A.G. McKenzie, Historical Note: Prelude to
Pancuronium and Vecuronium, 55 Anaesthesia 551, 551-55 (2000).
See supra note 127 and accompanying text.
Those states were Alabama, California, Colorado, Connecticut, Florida, Georgia, Kentucky, Maryland, New Mexico, North
Carolina, Tennessee, Texas, and Washington. See infra app. 1. The chemical combinations in those states were as follows:
Alabama: 1. Sodium Pentothal (50 CC); 2. Sodium Pentothal (50 CC); 3. Saline (60 CC); 4. Pavulon (50 CC); 5. Saline (60 CC);
6. Potassium Chloride (60 CC), Saline (60 CC); California: 1. Sodium Pentothal (5 g) in 20-25 cc of diluent; 2. Pancuronium
Bromide (50 cc); 3. Potassium Chloride (50 cc); Colorado: 1. 2.5 grams Sodium Pentothal; 2. 100 mg Pancuronium Bromide; 3.
100 mEq of Potassium Chloride; Connecticut: 1. Thiopental Sodium (2,500 mg) in 50 ml of clear Sodium Chloride 0.9 %
solution of approximate concentration of mg/ml or 5 %; 2. Pancuronium Bromide (100 mg) (contents of ten 5 ml vials of 2
mg/ml concentration) in 50 ml; 3. 120 mEq of Potassium Chloride (contents of two 30 ml vials of 2 mEq/ml concentration) in 60
ml; Florida: 1. No less than 2 g of Sodium Pentothal (2 syringes); 2. Saline solution; 3. No less than 50 mg of Pancuronium
Bromide (2 syringes); 4. Saline solution; 5. No less than 150 mEq of Potassium Chloride; Georgia: 1. Sodium Pentothal - 6
packages each containing 1GM + 50 cc of Sterile water; 2. Pavulon (Pancuronium Bromide) - 15 vials each containing 10 mgm;
3. Potassium Chloride - 9 vials each containing 40 mEq; 4. Intervals of Saline; Kentucky: 1. Sodium Pentothal 3 Gm; 2. Saline 25
mg; 3. Pavulon 50 mg; 4. Saline 25 mg; 5. Potassium Chloride 240 mEq; Maryland: 1. 120 cc/ 3 g/ two 60 cc syringes of Sodium
Pentothal, 2. 50 cc/ 50 mEq./ one 50 cc syringe of Pavulon; 3. 50 cc/ 50 mEq./ one 50 cc syringe of Potassium Chloride; New
Mexico: 1. One syringe of 2 g of Sodium Pentothal (contents of four 500 mg vials dissolved in the smallest amount of diluent
possible to attain complete, clear suspension); 2. Three syringes each of 50 mg Pavulon; 3. Three syringes each of 50 mEq of
Potassium Chloride; Two syringes each of 10-50 cc of saline; North Carolina: 1. No less than 3000 milligrams of Sodium
Pentothal; 2. Saline flush; 3. No less than 40 milligrams of Pancuronium Bromide (Pavulon); 4. No less than 160 mEq of
Potassium Chloride, saline to flush the IV lines clean; Tennessee: 1. 50 cc diluted Sodium Pentothal; 2. 100 cc Pancuronium
Bromide; 3. 100 cc Potassium Chloride; Texas: 1. 30 ml of solution containing 3 grams of Thiopental Sodium (Sodium
Pentothal); 2. 50 milliliters of solution containing 100 milligrams of Pancuronium Bromide; 3. 70 milliliters of solution
containing 140 mEq of Potassium Chloride; Washington: 1. 2 g Thiopental Sodium; 2. 50 cc normal saline; 3. 100 mg
Pancuronium Bromide; 4. 50 cc normal saline; 5. 1.50 to 2.70 mEq/kg, based on body weight, Potassium Chloride (KCl). See id.
See Denno, When Legislatures Delegate, supra note 14, at app. 1, at 150, tbl. 15. Those nine states were California,
Connecticut, Florida, Mississippi, Montana, New Mexico, North Carolina, Tennessee, and Washington. Id. Five states providing
the quantities of chemicals in 2005 had not offered that information in 2001. See infra app. 1. Those states were Colorado,
Georgia, Kentucky, Maryland, and Texas. See id. Notably, Alabama also provided this information in 2005. See id. Two states
(Mississippi and Montana) that had disclosed the quantities of the chemicals used in 2001 did not do so in 2005. Compare
Denno, supra note 14, at app. 1, tbl. 14 with infra app. 1. For two states (North Carolina and Washington), the amounts
specified in 2005 differed from the amounts provided in 2001. Compare Denno, supra note 14, at app. 1., tbl. 15 with infra app.


As Morales showed, chemical quantities offer the most valuable and revealing indication
of a particular state’s knowledge of the lethal injection process. But the mere listing of
chemicals is no assurance that department of corrections officials are conducting procedures
correctly. This point became paramount in Morales when the court turned to the proper
concentration of California’s three-drug mixture.295 Expert testimony revealed that the sodium
thiopental was so highly concentrated that it could cause severe pain for an inmate.296 As the
expert explained, California’s protocol mixture was “reckless” and “very injurious,”297 as well as
inexplicable: “There’s no advantage in making it up like this, and there’s significant
While the chemical information the thirteen states revealed in Study 2 has the potential to
provide insight, it lacks constitutionally critical details. Without knowing the concentrations of
these chemicals, it is impossible to determine whether an inmate actually will be unconscious
during the execution. Most states are inconsistent in their treatment of these calculations,
indicating that they do not understand their importance.299 For example, while Washington’s
2001 protocol included chemical concentration information, such information was missing from
its 2005 protocol,300 heightening the likelihood of a problematic execution.
After the conclusion of Study 2, a flurry of states started making minor revisions to their
protocols to placate the courts. For instance, both Oklahoma and Ohio altered their protocols
while facing litigation regarding lethal injection procedures. In 2006, Oklahoma doubled the

1. All other states that provided the chemical quantities in 2001 gave the same information in 2005. Compare Denno, supra note
14, at app. 1., at 150, tbl. 15 with infra app. 1.
In general, chemical quantities should be specified in two ways to determine if the chemical concentration is sufficient: (1) by
weight, which is indicated by grams (gm) or milligrams (mg), and (2) by volume, which is indicated by cubic centimeters (cc) or
milliliters (ml). Information on both the weight and the volume of diluent can indicate whether the concentration is so weak it
will have no effect, or so dense it can irritate an inmate’s veins and cause pain. See Testimony of Dr. Mark Heath (Sept. 27,
2006) at 503-04, Morales v. Tilton, 465 F. Supp. 972 (N.D. Cal. 2006).
See id. (“I’ve never heard of anybody making up pentothal at 20 percent. That’s an off-the-charts concentration of
As the quantities listed in note 293, supra, indicate, half of the six states that had no specified quantities in 2001, the
information provided in 2005 is inadequate. For example, Alabama, Colorado, and Kentucky have incomplete protocols in
which at least one, if not more, chemicals do not have both volume and weight. Therefore, the chemical concentrations are
unknown. For the other three, the specified concentrations for Georgia, Maryland, and Texas seem relatively orderly and proper,
at least on paper. The fact that Maryland’s protocol is written in a cumbersome way, however, suggests that its authors do not
appear to be medically sophisticated. North Carolina and Washington, which both specified the quantities of chemicals in 2001,
changed their specifications in 2005. The 2005 North Carolina protocol is a substantial improvement over its 2001 variant
because it mentions a proper concentration of potassium chloride; nonetheless, the 2005 North Carolina protocol only mentions
the weight but not the volume of sodium thiopental and pancuronium bromide. The protocol for Washington became more
problematic from 2001 to 2005. In 2001, Washington was one of four states in which the weights and volumes for sodium
thiopental and pancuronium bromide were specified as well as predictably lethal; in turn, only the weight was provided for the
potassium chloride. Yet, in 2005, there are a host of problems with the Washington protocol that make it more difficult to
interpret. First, the protocol provides only the weight, and not the volume, of the three chemicals. Overall, then, the passage of
time has had an odd and unexpected detrimental effect. Mississippi and Montana are perhaps the most perplexing because they
did avail of their chemical quantities in 2001 but refused to give the information in 2005. See Denno, When Legislatures
Delegate, supra note 14, at 118-121. In general, states that reported the same information at both time points also vary in the
extent of their sophistication. See id.
See supra note 299.


amount of sodium thiopental used.301 In Ohio, the Department of Rehabilitation and Corrections
investigated the state’s lethal injection protocol following the botched May 2006 execution of
Joseph Clark.302 According to the department, the state’s protocol would adopt several
changes,303 including the review of an inmate’s medical file.304 In turn, judges in California,
Missouri, and North Carolina ordered the revision of state lethal injection protocols.305 Only
North Carolina has executed an inmate under a new protocol, which required the use of a
machine to monitor the inmate’s level of consciousness during the execution.306
In general, the divergent ways in which states are attempting to correct the problems with
their protocols raise constitutional concerns beyond assessing whether protocols constitute
“unnecessary pain and suffering.” While it is established that each state now has the same threedrug procedure derived from Oklahoma,307 increasingly, the similarities among states end there.
No two states share the exact same protocol, as far as can be determined. The doses of drugs
vary, the qualifications of the executioners lack uniformity, and the conditions under which the
execution is performed differ. The umbrella of “lethal injection” conceals the fact that states are
inflicting substantially disparate types of punishments. Given these circumstances, it can be
questioned whether the method each state now follows is so unusual it violates the Eighth
Amendment’s standard of a “national consensus.”308 While there remains insufficient
information on lethal injection to make that determination, the nature and extent of statewide
variability suggests such a possibility.
In one way, this superficial similarity among states’ lethal injection protocols has
provided a shield for states to hide behind. When an inmate in one state would challenge a
protocol, the court would point out that more than twenty states used the same drugs and that no
court had held that any protocol violated constitutional mandates.309 For this reason, the recent
success of inmates challenging lethal injection protocols has created a snowball effect. Once one


Compare Experts Testify on Lethal Injection: States Procedure Can Be Painful, Doctors Say, Oklahoman, Aug. 9, 2006, at
11A (noting a doctor testified that the dose of thiopental was 1200 milligrams) with Jay F. Marks, Inmates Fight to the Death:
Lawsuits Try to Execute Lethal Injection Tactics, Oklahoman, Aug. 21, 2006, at 9A (noting that the dose was set at 2400
milligrams). Oklahoma did not provide the amount of chemicals used in the 2005 survey. See supra note 299.
See Letter from Terry J. Collins, director, Ohio Dep’t of Rehabilitation and Corr., to Gov. Bob Taft (June 27, 2006); see also
Provance & Hall, supra note 159 and accompanying text.
See Letter from Terry J. Collins, director, Ohio Dep’t of Rehabilitation and Corr., to Gov. Bob Taft (June 27, 2006)
(indicating changes including making every effort to establish two intravenous lines, one in each arm and using a slow-drip
process instead of a high-pressure syringe injection; removing time constraints on how quickly execution team members must
complete their tasks).
See id.
See Morales v. Hickman, 415 F. Supp. 2d 1037, 1044–46 (N.D. Cal.), aff’d per curiam, 438 F.3d 926 (9th Cir.), cert. denied,
126 S. Ct. 1314 (2006); Taylor v. Crawford, No. 05-4173-CV, 2006 WL 1779035 (W.D. Mo. June 26, 2006).
See Brown v. Beck, 445 F.3d 752 (4th Cir. 2006).
See supra note 127.
See supra note 269.
See, e.g., Evans v. Saar, 412 F. Supp. 2d 519 (D. Md. 2006) (“Circuit after Circuit (including the Fourth) has ruled that the
[same lethal injection protocol that Maryland uses] does not run afoul of the Eighth Amendment.”); Abdur’Rahman v. Bredesen,
181 S.W.3d 292 (Tenn. 2005) (noting that Tennessee used the method used by the vast majority of the states and had not been
held unconstitutional).


court found a protocol problematic, an inmate in another state could point to the similarities to
that state’s protocol to bolster the claim.310
This part considers how the current wave of lethal injection lawsuits originated,
particularly during the last several years of unprecedented speed and impact. Several themes
arise. First, the past four years include an unusual level of Supreme Court review of an
execution method. The consequences of the Supreme Court’s attention were nearly immediate,
as it legitimized inmates’ challenges, triggering the domino effect. Second, such litigation has
revealed the depth of the medical problems associated with injection. While lethal injection
challenges began immediately after the method’s hasty enactment in 1977,311 at no time during
the past three decades has information concerning medical complications and doctor
participation been so pronounced.312 It is this kind of “objective evidence” that Judge Fogel
found so compelling in Morales.313 Finally, this part briefly examines the parallel success of
inmates attacking lethal injection from different angles. The growing sophistication of the legal
parties and the complexity of the medical aspects of the litigation have invited a focus beyond
simply a traditional Eighth Amendment lens, leading to a more in-depth scrutiny.
A. The Supreme Court’s Involvement
A notable oddity of the American death penalty is the Supreme Court’s complete
constitutional disregard for how inmates are executed.314 While the Court continually has
recognized the Eighth Amendment hazards associated with prison conditions, particularly
through section 1983 claims, it never has reviewed evidence of the constitutionality of execution
methods despite repeated and horrifying mishaps.315 Nonetheless, starting in December 2003,
the Court granted certiorari on two lethal injection-related cases within just over a two-year
span.316 These cases centered on the procedural aspects of injection, but the Court’s interest in
the topic served as an impetus for broader movement in lethal injection litigation.
First, the Court agreed to hear Nelson v. Campbell, in which a condemned inmate sought
to challenge the use of a cut-down procedure in his lethal injection.317 David Nelson had filed

See, e.g., Cooey v. Taft, 430 F. Supp. 2d 702 (S.D. Ohio 2006) (staying an execution for a condemned inmate, which the Sixth
Circuit later overturned). In granting the stay, the district judge took note of the stays granted in challenges in California,
Missouri, and North Carolina and the mounting evidence questioning the constitutionality of lethal injection protocols. Id. at 707.
See generally Denno, When Legislature Delegate, supra note 14, at 100-16.
See supra Part II.
See supra Morales v. Hickman, 415 F. Supp. 2d 1037, 1039 (N.D. Cal.), aff’d per curiam, 438 F.3d 926 (9th Cir.), cert.
denied, 126 S. Ct. 1314 (2006).
See Denno, When Legislatures Delegate, supra note 14, at 70.
See Denno, Getting to Death, supra note 14, at 321-348; see also Hill v. McDonough, 126 S.Ct. 2096 (2006) (holding that an
inmate can use section 1983 to challenge an execution procedure, but not addressing the substantive claims).
See Hill v. Crosby, 126 S. Ct. 1189 (2006) (granting stay of execution and granting leave to petition for writ of certiorari);
Nelson v. Campbell, 540 U.S. 1046 (2003) (granting writ of certiorari for an inmate’s Section 1983 claim challenging the use of
the cut-down procedure in a lethal injection in Alabama). The Supreme Court agreed to hear the Nelson case on December 1,
2003 and agreed to hear the Hill case on Jan. 25, 2006. See Hill, 126 S.Ct. 1189; Nelson, 540 U.S. 1046. For excellent
discussions of Hill, see Douglas A. Berman, Finding Bickel Gold in a Hill of Beans, 2005-2006 Cato Sup. Ct. Rev. 311 (2006);
Note, A New Test for Evaluating Eighth Amendment Challenges to Lethal Injections, 120 Harv. L. Rev. 1301 (2007).
Nelson, 540 U.S. 1046 (2006). The Supreme Court granted certiorari on “[w]hether a complaint brought under 42 U.S.C §
1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the procedures for
carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C § 2254?” Id. The state had


his section 1983 claim three days before his execution, alleging that the cut-down procedure,
which the state could not even guarantee would be performed by a physician, violated his Eighth
Amendment rights.318 A federal district court in Alabama – a state that had adopted lethal
injection as an execution method only a year earlier – had dismissed Nelson’s complaint at the
pleading stage, characterizing the claim as a successive habeas application, and finding it barred,
which the Eleventh Circuit affirmed.319 The Supreme Court reversed, however, concluding that
the mere issuance of a stay did not convert a valid section 1983 claim into a successive habeas
petition.320 While the Court followed an entirely procedural path to reach its holding, the
decision highlighted an alternative avenue through which to bring such challenges, as opposed to
the highly restricted federal habeas corpus petition.321
The Supreme Court handed down its decision in Nelson in May 2004, but did not address
the question posed; the Court found it unnecessary to determine whether the inmate’s claim was
properly characterized as a section 1983 claim because the state conceded that it was.322 While
the Supreme Court in Nelson remanded the case for consideration of the constitutionality of the
cut-down procedure, the Court agreed again to address the procedural question in Hill v.
In the interim, however, the Supreme Court did not ignore the increasing number of
attacks lodged against lethal injection. Rather, an Eighth Circuit case relying on an
unprecedented medical study, kept the justices apprised of the validity of such challenges.324
That medical study, which appeared in an April 2005 issue of The Lancet, a British medical
periodical, reported that the level of sodium thiopental used in lethal injection executions might
be insufficient, particularly given the potential of poorly trained executioners, of previous inmate
substance abuse, and of the heightened level of anxiety in inmates (who generally are not premedicated).325
Condemned inmates and their lawyers seized on The Lancet’s empirical evidence to
support section 1983 claims challenging lethal injection.326 In May 2005, the Eighth Circuit
refused to grant a stay of execution for a Missouri inmate challenging the state’s lethal injection
protocol; but a dissenting judge cited The Lancet article and noted that the state had not rebutted
planned to use a “cut-down” procedure on the inmate, who had a long history of drug abuse, cutting into the skin to establish
intravenous access. See Nelson v. Campbell, 541 U.S. 637, 640 (2004).
See Nelson, 541 U.S. at 639.
See id. at 640, 642-43.
See id. at 645-47.
See id at 646-47.
See id. at 644. However, the Supreme Court found “[t]hat venous access is a necessary prerequisite does not imply that a
particular means of gaining such access is likewise necessary,” and reversed and remanded the case. Id. at 644, 651.
See Hill v. McDonough, 126 S.Ct. 2096 (2006) (finding that inmate could bring a Section 1983 claim to challenge the lethal
injection procedure, however, the claimant still must prove the elements necessary for the issuance of a stay of execution).
See Brown v. Crawford, 408 F.3d 1027 (8th Cir. 2005).
Leonidas G. Koniaris, et al., Inadequate Anaesthesia in Lethal Injection for Execution, 365 The Lancet 1412, 1412 (April 16,
2005). This article examined the post-execution toxicology reports of forty-nine inmates and concluded that twenty-one of those
inmates, or 43%, had levels of anesthesia “consistent with awareness.” Id.
See, e.g., Rutherford v. Crosby, 438 F.3d 1087 (11th Cir. 2006); Brown v. Crawford, 408 F.3d 1027 (8th Cir. 2005);
Timberlake v. Donahue, 2007 WL 141950 (S.D. Ind. Jan. 16, 2007); Crowe v. Head, 426 F. Supp. 2d 1310 (N.D. Ga. 2005); Hill
v. State, 921 So.2d 579 (Fla. 2006); Bieghler v. State, 839 N.E.2d 691 (Ind. 2005).


the article’s findings.327 Justice John Paul Stevens, dissenting from the Supreme Court’s denial
of the stay, wrote that he would have granted the stay for the same reasons as the dissenting
Eighth Circuit judge, alluding indirectly to The Lancet article.328 While the Court chose not to
hear the substantive issue of the section 1983 challenge, the Eighth Circuit case indicates that at
least some justices took note of the recent revelations regarding the effectiveness of lethal
injection protocols.329
Coincidentally, Clarence Hill, a Florida inmate, also relied on The Lancet article in
bringing his section 1983 challenge.330 The Supreme Court of Florida had rejected the claim,
noting that the court already had addressed the question of the constitutionality of the state’s
lethal injection protocol in 2000.331 But the United States Supreme Court granted certiorari to
answer the limited procedural question of whether a section 1983 claim to challenge a lethal
injection protocol could be classified as a successive habeas petition.332 The Court held that Hill
could bring his claim as a section 1983 action; but the lower courts declined to grant Hill the stay
of execution he needed to litigate his claim because he could not show a likelihood of success
that Florida’s execution procedures violated his constitutional rights.333 The state’s highest court
already had decided the question of the constitutionality of the state’s protocol in Sims v. State in
2000.334 And the new evidence provided by The Lancet article did not overcome the judicial
precedent.335 The district court in Florida found that Hill had not filed his claim in a timely
manner, but rather was trying to delay his execution, which the Eleventh Circuit affirmed.336
B. The Ripple Effects of Nelson and Hill
While the Supreme Court has addressed only the procedural aspect of execution method
challenges, the rarity of such attention awoke inmates and their lawyers, as well as the courts, to
the legitimacy of such claims. In what proved to be a foreshadowing of things to come, a New

See Brown, 408 F.3d 1027 (denying a stay of execution for an inmate attempting to challenge Missouri’s lethal injection
protocol under Section 1983). The Eighth Circuit dismissed the inmate’s challenge to lethal injection, however, a dissent from
the denial of stay cited The Lancet article’s findings that executed inmates might not have been anesthetized adequately. Id. at
1028 (Bye, J., dissenting).
See Brown v. Crawford, 125 S.Ct. 2289 (2005) (denying to grant a stay of execution for a Missouri inmate challenging the
state’s lethal injection protocol). Justice Stevens dissented from the denial of stay and, in a two-sentence opinion in which
Justices Ginsburg and Breyer joined, stated that he would grant the stay for the reasons discussed. Id.
See Hill v. State, 921 So.2d 579 (Fla. 2006) (denying challenge to lethal injection with a dissent noting the reasons to have an
evidentiary hearing on the issue). The inmate cited The Lancet article in alleging the state’s lethal injection protocol could
constitute cruel and unusual punishment. Id. at 582.
Id. at 582-83 (agreeing with the trial court that the information did not sufficiently call into question the holding in Sims v.
State, 754 So.2d 657 (Fla.2000), which found that Florida’s protocol did not violate the ban on cruel and unusual punishment).
One judge would have granted an evidentiary hearing based on the fact that the evidence from The Lancet and supporting
affidavit were “totally beyond anything considered by this Court or the trial court in Sims” and the state had failed to rebut the
findings. Id. at 586-87 (Anstead, J., concurring and dissenting).
See Hill, 126 S.Ct. 1189.
See Hill v. McDonough, 464 F.3d 1256 (11th Cir. 2006) (denying Hill's request for a stay of execution); Hill v. McDonough,
No. 4:06-CV-032, 2006 WL 2556938 (N.D. Fla. 2006) (dismissing condemned inmate’s Section 1983 complaint for unnecessary
delay in filing).
See Hill, 2006 WL 2556938, at *3 (noting that “[w]hile the Lancet study itself may be relatively new, the factual basis of
Hill's claim, has been raised and disposed of in other cases”).
See Hill, 464 F.3d at 1259.


Jersey court refused to allow the application of the state’s new lethal injection regulations two
months after the Supreme Court agreed to hear Nelson’s challenge.337 A group of citizens
advocating for a death penalty moratorium challenged the adoption of new regulations
implementing New Jersey’s lethal injection statute.338 The court, however, required the
department of corrections to justify changes in the procedure,339 stressing its concern over the
lack of medical involvement in determining the merit of the changes.340 Although the challenge
in New Jersey took a different form from subsequent actions, the theme of a lack of medical
input persisted. Indeed, the New Jersey advocacy group later filed an amicus brief in the
Supreme Court in the Hill case.341
Challenges to lethal injection protocols existed years before these two recent Supreme
Court cases,342 but the Court’s spark of encouragement, no matter how indirect, propelled
attorneys to bring claims that may have remained dormant otherwise. While the Nelson case
started the ball rolling, the effects of the Court’s decision to take up Hill were widespread and
immediate. The simple granting of certiorari in Hill served as the basis for stays of executions
for condemned inmates bringing section 1983 claim.343 The broad ripples of these cases spread
quickly and could be felt in state and federal courts, in legislatures, and in governors’ offices in a
number of states. The following sections examine six states in particular.
1. California
The Morales litigation in California that stretched throughout 2006 emphasized many of
the common issues embodied in a majority of lethal injection challenges.344 However, Morales
was not California’s first encounter with a section 1983 challenge to the state’s lethal injection
procedures. Donald Beardslee, a condemned inmate, brought the same claim in Beardslee v.
Woodford filed on December 20, 2004.345 Judge Fogel, the same district court judge who
presided over the Morales case, denied a preliminary injunction for Beardslee.346 The Ninth
Circuit found that the district court should have conducted an analysis of the facts to determine


In re Readoption with Amendments of Death Penalty Regulations, N.J.A.C. 10A:23, by the New Jersey Department of
Corrections, 842 A.2d 207 (N.J. App. Div. Feb. 20, 2004). The New Jersey court halted executions in the state because the
Department of Corrections had failed to justify proposed regulations for lethal injection, describing some of the regulations as
“arbitrary and unreasonable.” Id. at 68. For instance, the court stated that the Department of Corrections had not justified a
regulation removing the use of a heart monitor by merely stating that there was no need for an emergency revival cart and that the
lethal substances rejected are lethal; rather, the court stated a medical opinion to that effect might be necessary to justify the
regulation. Id. at 68-69.
Id. at 65-66.
Id. at 68.
See id. at 69. “Our concern is that [Department of Corrections] itself does not have medical expertise, and nothing in the
record suggests medical consultation and opinion on the reversibility issue or, indeed, whether there are any appropriate lethal
drugs whose effects might be reversible.” Id.
See Brief of Amicus Curiae New Jerseyans for Alternatives to the Death Penalty in Support of Petitioner, Hill v. McDonough,
126 S. Ct. 2096 (2006).
See Denno, When Legislatures Delegate, supra note 14, at 90-116.
See, e.g., Bieghler v. Donahue, 163 Fed. Appx. 419 (7th Cir. 2006); Jackson v. Taylor, No. Civ. 06-300, 2006 WL 1237044
(D. Del. May 9, 2006); Roane, et. al, v. Gonzales, 05-2337 (D.D.C. Feb. 24, 2006).
See Introduction, supra.
See Beardslee v. Woodford, 395 F.3d 1064, 1067 (9th Cir. 2005)
See id. at 1066. Beardslee previously had asserted in challenges to both lethal gas and lethal injection. See id. at 1068.


whether Beardslee could have brought his claim earlier;347 yet, the Ninth Circuit nonetheless
affirmed the dismissal of Beardslee’s claim because its review of the district court’s decision was
“limited and deferential.”348
Indeed, when the Northern District of California considered this same question in
Morales,349 it was only because the anesthesiologists withdrew at the last moment350 that the
court held evidentiary hearings that set the stage for Morales’ lethal injection challenge, in which
he ultimately prevailed.351 Courts in three of the states discussed below (Missouri, North
Carolina, and Florida), took judicial notice of the California district court’s February 12, 2006
order.352 Indeed, the lawyers representing the inmates in California also represented the inmate
who successfully challenged Missouri’s implementation of lethal injection.353
2. Missouri
In June 2005, Michael Anthony Taylor, a death row inmate, brought a section 1983 claim
in federal court in Missouri.354 A year later, in the same month that the Supreme Court handed
down its decision in Hill, that Missouri federal district court became the first court to hold a
state’s lethal injection protocol, as implemented, unconstitutional.355 The district court initially
denied Taylor’s claims.356 But in a second, more complete round of discovery and evidentiary
hearings, the court uncovered shocking details about Missouri’s lax execution procedures.
On June 5, 2006, attorneys representing Taylor conducted an anonymous deposition of
the supervising execution doctor, known in court records only as John Doe I.357 When asked
about Missouri’s written execution procedures, Dr. Doe said he had never seen any written
procedures.358 When asked about the method of mixing a solution of sodium thiopental – a drug
that, when improperly mixed, can cause an inmate excruciating pain – Dr. Doe said he
improvised because the powder form of the drug had not been dissolving.359 When asked why
he did not remember preparing lower doses of sodium thiopental for some inmates, Dr. Doe

See id. at 1070.
Id. at 1076.
See Morales v. Hickman, 438 F.3d 926, 927, 927 n.2 (9th Cir. 2006) (citing the district court order).
See Morales v. Hickman, Order on Defendant’s Motion to Proceed on Alternative Method to Order Denying Preliminary
Injunction (N.D. Cal. Feb. 21, 2006).
See supra notes 446-47 and accompanying text.
See Taylor v. Crawford, No. 05-4173-CV, 2006 WL 1779035, at *6 (W.D. Mo. June 26, 2006); Brown v. Beck, NO.
5:06CT3018 H 2006 WL 3914717, *3 (E.D.N.C. Apr 07, 2006); Diaz v. State, 945 So.2d 1136, 1144 (Fla. 2006).
Compare Morales v. Tilton, 465 F. Supp. 972, 973 (2006) with Taylor, 2006 WL 1779035, at *1.
See Taylor, 2006 WL 1779035, at *1.
Id. at *8.
See Taylor v. Crawford, 445 F.3d 1095 (8th Cir. 2006) (remanding to the district court). The Eighth Circuit previously had
reversed a stay of execution for the inmate that the district judge had ordered to allow for time for evidentiary hearings, which the
judge’s calendar could not accommodate until after the execution date. Id. at 1097-98. The Eighth Circuit had reassigned the
case to a different judge, who held limited evidentiary hearings before the execution date. Id. at 1098. However, the Eighth
Circuit ruled that the limited evidentiary hearing did not suffice and noted that the Supreme Court’s decision to hear the Hill case
(which had not yet been decided) militated in favor of remanding the case and giving thirty days for discovery and thirty days for
hearings. Id. at 1099.
See Taylor, 2006 WL 1779035, at *4.
See id. at *4-5.
See id. at *5.


responded that he had dyslexia, which hindered his memory: “So, it’s not unusual for me to
make mistakes . . . . That’s why there are inconsistencies in what I call drugs. . . . but it’s not
medically crucial in the type of work I do as a surgeon.”360 Dr. Doe’s deposition also revealed
that he had sole authority to modify the state’s protocol at a moment’s notice.361
Three weeks after Dr. Doe’s deposition, the district court held unconstitutional
Missouri’s lethal injection protocol.362 The court found numerous problems with Missouri’s
execution procedures. The state lacked a written protocol and Dr. Doe had cut in half the
amount of sodium thiopental used.363 The court expressed grave concern for the complete
discretion Dr. Doe had in modifying the protocol, especially given that he seemed unqualified for
the job and lacked training in anesthesiology.364 As a result, not only did the district court
conclude that such procedures subjected inmates to an unnecessary risk of unconstitutional pain
and suffering, but the court also banned Dr. Doe from participating in executions in the future.365
In its order, the district court stated that a board certified anesthesiologist had to mix the
lethal drugs and must directly observe the injection of the drugs.366 The court also required that
the dose of sodium thiopental be at least five grams, and that the anesthesiologist certify that the
inmate had reached a sufficient anesthetic depth before injecting the next two drugs in the
sequence.367 The court also required the constant monitoring of the inmate by the
Yet the state’s insistence on an anesthesiologist was short-lived. Missouri sent a letter to
298 anesthesiologists in the area, asking for their participation.369 The Department of
Corrections submitted an affidavit to the court eight days after mailing the letter, representing
that the department had been unable to retain an anesthesiologist.370 In September 2006, the
district court subsequently revised its requirement of a board-certified anesthesiologist, allowing
the state to use a physician trained in anesthesiology, potentially in combination with equipment
purchased to monitor anesthetic depth, but maintained that Dr. Doe was banned from
participating in future executions.371 Missouri appealed to the Eighth Circuit, arguing that the
district court exceeded its authority in fashioning a remedy beyond what the Constitution


Id. (emphasis in original).
See id. at *7.
See id. at *8.
See id. at *7.
See id. at *7.
See id. at *8; see also Taylor v. Crawford, No. 05-4173-CV (W.D. Mo. Sept. 12, 2006) (order rejecting state’s revised
See Taylor, 2006 WL 1779035, at *8.
See id. at *9.
See id.
Affidavit of Terry Moore, Taylor v. Crawford, No. 05-4173-CV (July 14, 2006).
See id.
See Taylor v. Crawford, No. 05-4173-CV (W.D. Mo. Sept. 12, 2006) (order rejecting state’s revised protocol)
See Brief of Appellants, Taylor v. Crawford, No. 06-3651, at 51-61 (Dec. 4, 2006).


3. North Carolina
In a similar section 1983 challenge in North Carolina during 2006, Willie Brown, Jr., a
condemned inmate, achieved limited success.373 The North Carolina district court found that the
state needed to revise its protocol to ensure the inmate was unconscious.374 In response, the
Department of Corrections chose to purchase a machine to monitor the inmate’s level of
consciousness.375 The district court found the execution could proceed.376 The Fourth Circuit
affirmed over the dissent of one judge, who maintained that the state’s solution was
inadequate377 because of evidence that the machine on its own could not provide a sufficient
measure of anesthetic depth.378 Additionally, while medical personnel must monitor the
machine’s output readings, the district court order “ma[de] no provision for these medical
professionals to actually do anything” if a sufficient level of anesthetic depth was not
achieved.379 Likewise, “even if a medical professional could respond,” there was no evidence to
show that “the professional would possess the skills necessary to ensure Brown’s
unconsciousness.”380 Nonetheless, North Carolina executed Brown on April 21, 2006.381
In practice, North Carolina’s response proved flawed. First, the manufacturer of the
machine protested its use in executions:382 It did not want to give the execution the appearance
of a medical procedure.383 In fact, California had attempted to purchase the same machine from
the company for Morales’ execution, but the company refused to sell the machine to the state.384
North Carolina, however, stated on its order form that the machine would be used to monitor
inmates recovering from surgeries.385 The company subsequently enacted a policy that required
departments of corrections to sign contracts specifying that the machine would not be used in
executions.386 Of course, the company may be powerless to contain the use of its equipment,
because machines are offered for resale on the Internet.387


See Brown v. Beck, 2006 WL 3914717 (E.D.N.C. April 7, 2006).
See id. The district court found that Brown raised sufficient doubts about the constitutionality of his execution that the state
needed to address those concerns before the execution could proceed. Id. at *8. “Specifically, the Court finds that the questions
raised could be resolved by the presence of medical personnel who are qualified to ensure that Plaintiff is unconscious at the time
of his execution.” Id. at *8. The district court gave the state one week in which to respond. Id.
See Brown v. Beck, 5:06-CT-3018 (E.D.N.C. 2006) (Apr. 17, 2006) (ruling that North Carolina could proceed with the
execution because it had taken sufficient precautions to make sure the inmate was unconscious through the use of the monitoring
See id.
See Brown v. Beck, 445 F.3d 752 (4th Cir. 2006)
See id. at 754 (Michael, J., dissenting).
Id. at 755.
Id. at 756.
See N. C. Dep’t of Corr., Execution Carried Out Under Current Death Penalty Statute,
See Robert Steinbrook, New Technology, Old Dilemma—Monitoring EEG Activity During Executions 354 New Eng. J. Med.
2525 (2006) (examining the use of bispectral index monitors in executions).
See id. at 2526.
See id.
See id. at 2527.
See id.
See id. at 2526.


Events in 2007 also called into question the adequacy of the state’s response to the
court’s order and highlighted the validity of the dissenting judge’s concerns. In March 2007, a
North Carolina district court halted executions until the state could guarantee the participation of
a licensed physician, as required by the state’s lethal injection statute.388 On that same day,
North Carolina filed a complaint against the state medical board seeking to prevent the board
from taking disciplinary actions against those physicians who chose to participate in
executions.389 In depositions taken for that lawsuit, however, the parties discovered a deviation
from the district court’s order allowing the execution to proceed.390 The physician present at
previous executions said he did not monitor inmate unconsciousness and that the Department of
Corrections had never informed him of the order requiring such monitoring.391 As a result of
such revelations, the lawyers who represented a North Carolina inmate executed in August
suggested they would file a wrongful death lawsuit against the state.392
4. Florida
While Hill emerged successful from the Supreme Court, the victory proved to be of little
use to Hill himself. The federal courts in Florida declined to grant Hill a stay so he could pursue
the challenge and Florida executed Hill on September 20, 2006.393 But the next chapter in
Florida’s battle with lethal injection began three months later. Florida would execute two more
inmates before the execution of Angel Diaz would cast Hill’s claims in a new light.394
For thirty-four minutes on December 12, 2006, execution personnel in Florida attempted
to put Diaz to death.395 But Diaz was not dying. Newspaper accounts of the execution painted
the gruesome scene: Diaz lay on the execution table, squinting and grimacing, while trying to
speak; executioners had to inject a second round of chemicals.396 The medical examiner’s report
revealed that the IV had infiltrated, meaning that the lethal chemicals flowed into Diaz’s tissue,
rather than his bloodstream.397 Ironically, Diaz unsuccessfully had challenged the state’s lethal
injection procedures.398
Two days after the Diaz execution (and, notably, the day after the Morales decision),
Florida Governor Jeb Bush established a commission to investigate the state’s lethal injection


See North Carolina v. Holman, 97-CRS-49226 (Wake Co. Sup. Ct. Mar. 6, 2007) (canceling the execution until the state could
meet the requirements of the statute).
See Complaint N.C. Dep’t of Corr. v. N.C. Med. Board (Wake Co. Sup. Ct . Mar. 6, 2007) (alleging that executions are not
medical procedures regardless of participation by physicians or EMTs and, therefore, requesting a preliminary injunction
preventing the N.C. Medical Board from taking action against doctors who participate and requesting the court declare that
executions are not medical procedures).
See Andrea Weigl, Did Doctor Monitor Executions?, The (N.C.) News & Observer, Mar. 29, 2007, at xx.
See Andrea Weigl, Doc’s Execution Role: Be Present, The (N.C.) News & Observer, Mar. 30, 2007, at xx.
See id.
See Florida Department of Corrections, Execution List, 1976 to Present,
(last visited Mar. 9, 2007).
See id.
See Florida Commission Report, supra note 30, at 8.
See id. at 10.
See id. at 8.
See Diaz v. State, 945 So.2d 1136, 1144 (Fla. 2006)


procedure.399 During the first two months of 2007, the commission held five days of evidentiary
hearings,400 concluding in a report that the state’s protocol and execution training procedures
required revising.401 Specifically, the report noted that, during Diaz’s execution, execution team
members had failed to establish the intravenous access properly or even to follow the state’s
protocol.402 The commission recommended ways to address these problems (including ensuring
the inmate’s level of unconsciousness); yet, citing ethical reasons, the three medical
professionals on the commission “refrained from rendering [their] medical expertise or
consent[ing] to these specific recommendations.”403
These same medical professionals
concluded that the recommendations would require the employment of medical personnel who
would violate ethical guidelines and, as such, “the inherent risks, and therefore the potential
unreliability of lethal injection cannot be fully mitigated.”404
5. Kentucky, Maryland
Relative to the successes garnered in California, Missouri, North Carolina, and Florida,
inmates pursued challenges in far less dramatic fashion in a slew of other states. For example,
two states, Maryland and Kentucky, halted executions based on violations of administrative
enactment procedures.405 Maryland’s ruling still stands; yet, the Kentucky court reversed itself
after finding that subjecting lethal injection procedures to public review would turn the process
into “nothing but a series of collateral attacks precluding capital punishment.”406
C. Parallel Success without a Solution
Historically, challenges to execution methods have followed a fairly predictable Eighth
Amendment path. When one method of execution became problematic, such as hanging, for
example, states would sense constitutional vulnerability and switch to another method, such as
electrocution or lethal gas. When those two methods established a record of serious botches,
states switched to lethal injection.407 Yet, the past four years have shown a striking array of
continually changing strategies – ranging from action in the courts in the form of the morefrequent section 1983 challenges and less-frequent administrative law claims to gubernatorial
attempts to investigate lethal injection without court involvement and state legislative efforts to
permit doctor participation in executions.
In 2006 alone, two district courts held state lethal injection protocols unconstitutional,
two governors put executions on hold, and another handful of states effectively halted executions


See Fla. Exec. Order No. 260 (Dec. 15, 2006) (staying all executions after the botched execution of Angel Diaz).
See Florida Commission Report, supra note 30, at 3-4.
See id. at 8-13.
See id. at 8.
See id. at 15.
See Evans v. State, 914 A.2d 25, 80-81 (Md. 2006); Bowling v. Ky. Dep’t of Corr., No. 06-CI-00574 (Ky. Franklin Cir. Ct.
Div. 1 Nov. 22, 2006).
Bowling v. Ky. Dep’t of Corr., No. 06-CI-00574, at 8 (Ky. Franklin Cir. Ct. Div. 1 Dec. 27, 2006).
See Denno, When Legislatures Delegate, supra note 14, at 81-86, 129-31.


as inmates pursued lethal injection challenges.408 Indeed, the actions in California, Maryland,
and Florida occurred over five days in December 2006.409 In early 2007, Tennessee’s governor
established a ninety-day stay of executions to review the state’s procedures and a Delaware court
certified a class action section 1983 lawsuit by the state’s sixteen death row inmates.410 The start
of 2007 also showed a high level of involvement on the part of state legislatures.411 The
appropriate degree of medical participation served as one common thread weaving through these
Presumably, the impact and visibility of this litigation, and the problems it revealed,
would encourage states to make substantial changes in their protocols as well as assess issues
pertaining to medical involvement. However, the disjointed ways in which states have reviewed
their protocols – at times responding on the fly to court orders, as in California, or establishing a
quick-and-dirty review of execution procedures, as in Florida – indicate a need for a more
comprehensive and cohesive effort to address the problems. The next part offers
recommendations for such a response.
In Morales, Judge Fogel stated that this country’s lethal injection process can be
“fixed.”412 Yet, it is questionable whether the remedies that have been proposed can fix lethal
injection protocols with a sufficient degree of reliability. The difficulty with identifying the
“fix” is that states have not provided enough information on the problems. Recent revelations
about lethal injection in this country have resulted in more questions than answers: What is the

Federal district courts in California and Missouri held execution protocols unconstitutional in 2006. See Morales v. Tilton, 465
F. Supp. 2d 972 (N.D. Cal. 2006); Taylor v. Crawford, No. 05-4173-CV, 2006 WL 1779035, *8 (W.D. Mo., 2006). In 2006,
governors in three states, Florida, South Dakota, and Tennessee, imposed a moratorium on executions by executive order. See
Fla. Exec. Order No. 260 (Dec. 15, 2006) (staying all executions after a botched execution); Tenn. Exec. Order No. 43, (placing
executions on hold for ninety days); Aug. 29, 2006 Press Release from Governor’s Office: Gov. Rounds Issues Statement on the
Stay of Execution for Elijah Page, Courts in four others states—Arkansas, Delaware,
Maryland, and Ohio—stayed executions in 2006 and have not had an execution since the stay. See Cooey v. Taft, 430 F. Supp.
2d 702 (S.D. Ohio 2006); Jackson v. Taylor, Civ. No. 06-3000 (D. Del. May 9, 2006), available at
0PI.pdf; Evans v. State, Nos. 107, 122-24, 2006 WL 3716363 (Md. Dec. 19 2006). In February 2007, the Delaware district court
certified the suit challenge Delaware’s lethal injection protocol as a class action lawsuit and joined to the suit the additional
fifteen death row inmates. See Jackson v. Danberg, No. CIV.06 300, 2007 WL 549731 (D. Del. Feb. 22, 2007).
The Northern District of California issued its opinion holding the state’s protocol unconstitutional as implemented on
December 15, 2006; the Florida governor and the Maryland Court of Appeals both halted executions on December 19, 2006. See
Evans, 2006 WL 3716363, at *; Fla. Exec. Order No. 260 (Dec. 15, 2006); Morales v. Tilton, 465 F. Supp. 2d at 981.
See Jackson v. Danberg, No. CIV.06 300, 2007 WL 549731 (D. Del. Feb. 22, 2007) (certifying class action suit challenging
Delaware’s lethal injection protocol and joining to the suit the additional fifteen death row inmates); Tenn. Exec. No. 43 (Feb. 1,
The governor signed two bills relating to lethal injection. First, revisions to the lethal injection statute eliminated the reference
to “substance or substances in a lethal quantity.” See H.B. 1175, An Act to provide for the substances used in the execution of a
sentence of death and to allow the choice of the substances used in an execution under certain circumstances (S.D. 2007 (signed
Feb. 23, 2007). Second, a separate bill repealed any mention of physician involvement from the death penalty sections of the
statutory code. See H.B. 1160, An Act to repeal the requirement for physician involvement in the execution of a sentence of death
by eliminating certain specified roles (S.D. 2007) (signed Feb. 23, 2007).
Morales v. Tilton, 465 F. Supp.2d 972, 974 (N.D. Cal. 2006).


appropriate level of medical involvement? And who should decide? Are states using the correct
drugs? Do less constitutionally vulnerable alternatives exist?
This part recommends a method for solving the underlying problem – the lack of accurate
information – as a pre-requisite for answering the key questions. First, states should provide for
an adequate time to conduct an in-depth study of the proper implementation of lethal injection.
Second, states should make transparent lethal injection procedures. An apt analysis of the
constitutionality of lethal injections cannot succeed without states’ release of all critical
information on the execution process.
A. In-Depth Study of Lethal Injection
States adopted lethal injection without medical or scientific justification for the
procedure.413 As such, it is not surprising that Texas botched this country’s first lethal injection
and that states continuously have failed to prevent such debacles.414 From the start, however, the
medical profession strongly opposed the use of lethal injection for executions, fearing that the
public would associate the practice of medicine with death.415 Yet, lethal injection’s link to
medicine did make executions appear more humane and palatable – a perception states
encouraged.416 The vision of a serene inmate gently falling asleep evoked all the beneficial
associations that only the medial profession could bring. Such inaccurate depictions have
shielded states from careful review of their implementation of lethal injection.
Within the past few years, however, growing skepticism over troublesome executions has
dented this shield, as well as threatened the viability of the death penalty itself.417 In response, a
few states quickly organized commissions of experts in an attempt to review and possibly repair
their lethal injection procedures. In both Florida and Ohio, for example, highly publicized
botched executions served as the focal point for the states’ appointed commissions.418
On the surface, these efforts seem like sensible solutions to lethal injection’s problems.
The commissions incorporate, for example, a number of the Human Rights Watch Report’s
recommendations to state and federal corrections agencies on improving lethal injection
procedures. These include an effort to “[r]eview lethal injection protocols by soliciting input
from medical and scientific experts, and by holding public hearings and seeking public
comment.”419 While Florida assembled such a commission,420 the haste in which its members
were selected, organized, and prepared cast doubt on both the credibility and thoroughness of the
final report released less than four months after Diaz was executed.421 For example, the
commission provided its testifying experts with very short notice of their role or the purpose of

See supra note 83 and accompanying text.
See supra note 155 and accompanying text.
See supra note 168-170 and accompanying text.
See supra note 96 and accompanying text.
See supra notes 44-45 and accompanying text; see also Part IV.
See supra note 93, 390 and accompanying text.
See Human Rights Watch, supra note 130, at 7.
See supra notes 386-390 and accompanying text.
See Florida Commission Report, supra note 30.


their statements.422 Such sporadically scheduled testimony and meetings, as well as comments
from the public, ultimately resulted in the commission’s hurriedly produced, sixteen-page report,
which offered only a limited number of skeletal recommendations.423
Other states have fared even worse than Florida. For example, Ohio’s “study” of the
causes of its lethal injection botch resulted in a two-and-a-half page report.424 In Ohio, only
when a condemned inmate strapped to the gurney told the state – “It’s not working”425 – did
department officials acknowledge their lethal injection procedures might be “broken.”426 It is
doubtful that the procedures truly were “fixed” by the time Ohio executed its next inmate two
months later.427
In early 2007, Tennessee provided a ninety-day moratorium and less than an hour of
public hearings for its “quick fix” examination of its lethal injection procedures, which delegated
all responsibility for the study to the corrections department.428 In the Tennessee Governor’s
own words, the ninety-day review “would give the state time to correct ‘sloppy cut and paste’
execution proceedings that were ‘full of deficiencies.’”429 Yet, the Governor himself is
mirroring the same kind of mistake he accuses the department of corrections making. The
constrained time frame is “neither realistic nor responsible.”430 Accounts also indicate that no
medical personnel spoke at the public hearings and there was no clear documentation that any
The criticism of Tennessee’s approach and the sheer inadequacy of Ohio’s method
exemplify the built-in failures of attempted speedy resolutions. Overall, these states’ efforts at
examining lethal injection have been so limited in time and expertise, that their recommendations
should carry no weight. Ironically, execution moratoria fuel these rushed and reckless
assessments of lethal injection’s problems and solutions because of the pressure to carry out the
punishments. Regardless of the establishment of moratoria, states should conduct an extensive
In contrast to recent cursory studies of lethal injection, New York’s nineteenth century
approach to examining execution methods was far more thorough than any other ever attempted
in this country since. The state’s 1890 Commission spent two years carefully evaluating every
execution method ever used, while also conducting a massive review of materials to prepare for a
detailed evidentiary hearing on electrocution.432 Given the medical complexity of lethal
injection, modern attempts at studying execution methods are frivolous in comparison.

See supra note 391and accompanying text.
See generally Florida Commission Report, supra note 30.
See Letter from Terry J. Collins, director, Ohio Dep’t of Rehabilitation and Corr., to Gov. Bob Taft (June 27, 2006).
Adam Liptak, Trouble Finding Inmate’s Vein Slows Lethal Injection in Ohio, N.Y. Times, May 3, 2006, at A16.
See Letter from Terry J. Collins, director, Ohio Dep’t of Rehabilitation and Corr., to Gov. Bob Taft (June 27, 2006).
See Ohio Executions, (last visited Mar. 22, 2007).
Sheila Burke, Lawyers Doubt Quick Fix for Executions; State Says It Will be Set to Kill Workman May 9, Tennessean, Apr. 6,
Jared Allen, 90-Day Execution Review Unrealistic, Inadequate, Critics Say, Nashville City Paper, Apr. 6, 2007.
See id.
See New York Commission Report, supra note 50 and accompanying text.


There is also impressive precedent from mid-twentieth century Great Britain.433 For
example, the Royal Commission consisted of a group of the highest-ranking experts in the
United Kingdom.434 Over a five-year period, these experts produced a five-hundred page report
considering all aspects of capital punishment, including a detailed assessment of execution
methods, particularly lethal injection.435
With this perspective, the Royal Commission could make informed recommendations on
how the country should proceed if in fact the death penalty would continue. For instance, highly
respected medical societies participated in the review, even though they opposed their
participation in executions.436 The Commission took seriously expert medical input about the
hazards and impracticalities of injection, but also believed that the medical profession’s
unwillingness to be involved only “magnified” the “consequences” of medicine’s link to capital
punishment and was not a reason for rejecting a particular execution method.437 Indeed, the
Commission favored another medical take the matter: The medical profession should view
physician participation “as one of individual conscience, and not all doctors would feel debarred
from giving instruction for such a purpose.”438
Of course, one key factor of current analyses of lethal injection in the United States
concerns physician participation. But this area is the most immersed in paradox. While the
AMA Ethics Council derided physician involvement in executions, the Council also concedes
that physicians can make executions more humane.439 This stance bears on the Eighth
Amendment because it brings some substantive contours to the “very narrow question” of
whether a “lethal-injection protocol – as actually administered in practice – creates an undue and
unnecessary risk that an inmate will suffer pain so extreme that it offends the Eighth
Without physician participation, is any pain an inmate experiences
“unnecessary”? That question is one that demands the input of medical organizations, but they
are loathe to provide it. As Judge Fogel noted in Morales, “the need for a person with medical
training would appear to be inversely related to the reliability and transparency of the means for
ensuring that the inmate is properly anesthetized . . . ”441


See supra notes 69-77 and accompanying text.
See Royal Commission Report, supra note 69, at 3.
See generally id.
Id. at 258. For example, the Commission quoted the view of the British Medical Association:
“No medical practitioner should be asked to take part in bringing about the death of a convicted murderer.
The Association would be most strongly opposed to any proposal to introduce, in place of judicial hanging, a
method of execution which would require the services of a medical practitioner, either in carrying out the
actual process of killing or in instructing others in the technique of the process.”
Id. at 259.
Id. at 259. Such a view conforms to the finding of a recent survey of American physicians, in which nineteen percent of those
physicians polled stated that they would be willing to participate in an execution, despite opposition from influential medical
societies. See Neil J. Farber, et al., Physicians’ Willingness to Participate in Process of Lethal Injection for Capital Punishment,
135 Ann. Intern. Med. 884, 886 (2001).
See supra note 229 and accompanying text.
Morales v. Tilton, 465 F. Supp.2d 972, 974 (N.D. Calif. 2006).


While the medical associations can – and perhaps should – protest their involvement,
most doctors are not even members of these organizations. A more thorough study might reveal
the willingness of some doctors to participate – something the law does not prohibit. In turn,
medical associations’ participation in evaluations of lethal injection could give their arguments
against it more credibility. As time has shown, the current hands-off strategy of medical
associations has not worked. In addition to decrying medical participation in lethal injections,
medical associations should accept the reality that some doctors do participate and work to solve
the conflict, rather than contributing to it.
B. Increased Transparency of Lethal Injection Procedures
Of course, even the most thorough and comprehensive study would prove meaningless if
its recommendations were not implemented properly. As Judge Fogel emphasized in Morales,
“the reliability and transparency” of the injection process impacted the need to have medical
personnel involved.442 Such a philosophy need not be limited to medical involvement. It should
be applied to every aspect of lethal injection.
Evidence shows that states currently do not follow even their vague protocols.
Missouri’s Dr. Doe altered the amount of sodium thiopental delivered. Ohio executioners failed
to maintain the required dual IV lines. The Florida commission acknowledged that the execution
team did not heed the state’s existing guidelines for the delivery of chemicals. In California,
state officials mislead the anesthesiologists about their role. And, in North Carolina, the state
and participating doctor ignored a court-order to monitor the inmate’s level of
Given such blatant disregard for existing procedures, states cannot be trusted to perform
executions without oversight. States have withdrawn information in the face of challenges,
reinforcing the belief that they lack the ability or willingness to conduct executions in line with
constitutional mandates. As this author’s study showed, in 2005, a disturbingly high number of
states failed to provide public protocols, thereby hiding from public scrutiny how they execute.
Even the mere delegation of execution procedures to corrections officials decreases their
Judge Fogel tried to improve transparency by placing the responsibility of lethal injection
where it belonged – with the governor, an elected official.444 Ironically, California’s governor
insisted in operating in complete secrecy in its protocol review, a request that Judge Fogel rightly
denied.445 Likewise, Florida’s legislature recently promised greater oversight of the state’s lethal

See supra Part IV.
Morales v. Tilton, 465 F. Supp.2d 972, 974 (N.D. Calif. 2006) (noting that the Governor’s Office “is in the best position to
insist on an appropriate degree of care and professionalism”).
See Order Denying without Prejudice Joint Motion for a Protective Order Morales v. Tilton, 06 219 JF RS, 06 926 JF RS
(N.D. Cal. Mar. 6, 2007). Judge Fogel expected the state to file its revised protocol by May 15, 2007. See id. Ironically, the
Department of Corrections and Rehabilitation attempted to build a new execution chamber in secret in 2007. See Henry
Weinstein, Arnold Kills Death Chamber Project at San Quentin, L.A. Times, Apr. 20, 2007 (discussing Governor Arnold
Schwarzenegger’s decision to stop the construction).


injection procedure.446 The state court decisions in Maryland and Kentucky struck at the heart of
this matter, with inmates arguing that implementation regulations should be subject to public
review.447 Maryland found such review necessary; while the Kentucky court initially ruled in the
same way, it then reversed itself, fearing that the focus of such proceedings would be the death
penalty itself rather than the regulations for implementing lethal injection.448
Such public availability of execution procedures is critical, however, to ensuring the
constitutionality of executions. And such transparency might also help resolve the conflict
between law and medicine because society will start to take responsibility for implementing
executions. Devoid of the distracting need to finger-point, law and medicine can work jointly,
sharing communications and expertise to better understand how to “fix” the “broken” system.
On February 20, 2006, Michael Morales was hours away from execution when two
anesthesiologists declined to participate in the lethal injection procedure. As Judge Fogel would
later explain, there had been “‘a disconnect’” between the anesthesiologists’ and the courts’
“expectations” of what the doctors’ roles should be. This disconnect, however, went beyond one
execution in California. The events surrounding Morales’ impending fate brought to the surface
the long-running schism between law and medicine, raising the question of whether any
connection between the professions ever existed at all. History shows it never did. Decades of
botched executions prove it.
Until states address this schism, instead of ignoring it, lethal injections will remain
constitutionally vulnerable. Inmates will continue to challenge the implementation of the
method; states will continue to make uninformed changes to ensure the death penalty survives.
Only by conducting a thorough study of the method will society be able to know whether lethal
injection can meet constitutional mandates.


See Bill Kaczor, Senators Says Lawmakers Will Monitor Lethal Injection Reforms, Bradenton (Fla.) Herald, Mar. 28, 2007.
See supra notes 405-06 and accompanying text.
See supra note 406 and accompanying text.













Facsimile from Brian Corbett, Public Info. Officer, Alabama Dep’t of Corr. to Daniel Auld, Research
Assistant, Fordham Law School (June 15, 2005) (providing syringe preparation sheet with chemical names
and quantities).
Complex—Florence, (containing information on Arizona’s lethal
injection procedures, including the chemicals) (on file with Fordham Law School); E-mail from Jill
Berger, Executive Secretary II, Deputy Director's Office to Daniel Auld, Research Assistant, Fordham
Law School (July 20, 2005) (stating Arizona’s policy is restricted).
Facsimile from Dina Tyler, Public Info. Officer, Ark. Dep’t of Corr. to Daniel Auld, Research Assistant,
Fordham Law School (Arkansas procedure for execution) (June 16, 2005) (providing information on
Arkansas’s procedures with handwritten revisions).
Corr., (last visited June
15, 2005) (giving some details of California execution procedure); Telephone interview with Vernell
Crittendon, Public Info. Officer, San Quentin (concerning California procedure).
Corr., (last visited June 15, 2005) (detailing the procedure
that occurs in Colorado on execution day and providing the chemical names); Telephone interview with
Katherine Sanguinetti, Spokeswoman for Dep’t of Corr. (July 1, 2005) (providing additional information
on Colorado procedures).
State of Conn. Dep’t of Corr. Pub. Defender’s Admin. Directive 6.15 Administration of Capital
Punishment (effective October 19, 2004); Telephone interview with Brian Garnett, Director of External
Affairs (June 15, 2005) (providing additional information on Connecticut’s execution procedure).
Del. Dep’t of Corr., (providing Delaware’s protocol) (last
visited June 16, 2005); Telephone interview with Beth Welch, Del. Dep’t of Corr., Chief of Media
Relations (July 1, 2005).
Sims v. State, 754 So.2d. 657, 665 (Fla. 2000) (listing chemical information); Facsimile from Debbie
Buchanaan, Bureau of Public Affairs to Daniel Auld, Research Assistant, Fordham Law School (June 16,
2005) (providing Florida’s protocol with portions redacted).
Letter from Rhoda S. McCabe, Senior Assistant Counsel, Ga. Dep’t. of Corr., Legal Office (July 25, 2005)
(containing information regarding Georgia’s lethal injection procedures).
E-mail from Melinda O'Malley Keckler in Public Info. Office to Daniel Auld, Fordham University School
of Law (July 19, 2005) (stating that Idaho’s information on lethal injection was confidential).
Telephone interview with John Hosteny, Ill. Dep’t of Corr., (July 13, 2005) (stating that the Illinois’
procedure is confidential).
Ind. Dep’t Corr. Execution Process (containing information on chemicals, but not the quantities);
Telephone interview with Barry Nothstine, Indiana State Prison (June 20, 2005).
Facsimile from Frances Breyne, Public Info. Officer, Kan. Dep’t of Corr. to Daniel Auld, Fordham Law
School (July 19, 2005) (containing execution procedure).
Ky. Corr. Policy & Proc. 9.5 (effective Dec. 17, 1998); Letter from Jeff Middendorf, General Counsel
(July 11, 2005) (listing chemical quantities for Kentucky).
Facsimile from Sara Calvert to Daniel Auld, Research Assistant, Fordham Law School (June 20, 2005)
(containing Louisiana Dep’t of Public Safety and Corr. Reg. C-03-001 Field Operations Death Penalty);
Telephone interview with Deputy Warden Richard Peabody of Angola Penitentiary, Louisiana (July 19,
2005) (providing additional information about Louisiana’s procedure).
Facsimile from George Gregory, Public Info. Officer, to Daniel Auld, Research Assistant, Fordham Law
School (Aug. 12, 2005) (containing Md. Dep’t of Pub. Safety & Correctional Serv. Execution Operations
Manual); E-mail from Tara Frazier, Commn’s Officer, to Daniel Auld, Research Assistant, Fordham Law
School (July 1, 2005) (denying request for Maryland’s protocol).
E-mail from Tara Frazier, Communications Officer, Miss. Dep’t of Corr., to Daniel Auld, Fordham
University School of Law (July 19, 2005).
Telephone interview with John Fougere, Chief Public Info. Officer (June 29, 2005).
Mont. Dep’t of Corr.,, taken on June 25, 2005; Mont. State
Prison Policies and Procedures, MSP 3.6.1, Execution (effective Feb. 5, 2001); Telephone interview with


New Hampshire
New Jersey
New Mexico
North Carolina



South Carolina
South Dakota





Linda Moodry, Public Info. Officer, Mont. State Prison (July 19, 2005).
Telephone interview with Fritz Schlottman, Public Info. Officer (July 1, 2005) (stating that Nevada’s
protocol is confidential).
E-mail from Jeffrey Lyons, Public Information Officer, sent to Daniel Auld, Fordham Law School (June
20, 2005) (stating that New Hampshire has no formal policy).
E-mail from Matthew Schuman, Spokesman for the Department of Corrections, sent to Daniel Auld,
Fordham Law School (Aug. 3, 2005) (stating that the New Jersey’s protocol is under revision).
Telephone interview with Keith Norwood, Deputy Warden, Penitentiary of New Mexico, Santa Fe (July
19, 2005) (stating that New Mexico’s protocol had not changed since it was provided in 2001).
Facsimile from Pam Walker, Public Affairs Dir. to Daniel Auld, Fordham Law School (June 30, 2005)
(containing Affidavit of Marvin L. Polk, Warden of Central Prison in Raleigh, N.C. (last visited Sept. 27,
2004); Execution Method, N.C. Dep’t of Corr.,
Corr., (last visited Mar. 22, 2005); Facsimile from Ohio Director’s
Office to Daniel Auld, Fordham Law School (June 29, 2005); Telephone interview with Andrea Dean,
Commn’s Chief, Director's Office (June 29, 2005) (answering questions about Ohio’s protocol).
Okla. Dep’t of Corr., (last visited July 19, 2005).
Punishment,; Capital Punishment in Oregon,
Affairs, (last visited June 28,
2005); Telephone interview with Perrin Damon, Commn’s Manager (June 30, 2005); Telephone interview
with Leigh Mann, Public Info. Officer (July 19, 2005).
Penn. Dep’t of Corr., (last visited
June 29, 2005); Telephone interview with Sue McNaughtan, Press Secretary (June 29, 2005).
No information provided.
S.D. Execution Guidelines, SDLC 23A-27A-15 to 23A-27A-41; Telephone interview with Michael
Winder, Commn’s & Info. Manager (July 20, 2005); Telephone interview with Ricky Bell, Warden,
Riverbend Maximum Security Institution (June 30, 2005).
Corr., (last visited June 30, 2005);
Telephone interview with Amanda Sluss, Commn’s Officer (June 30, 2005).
E-mail from Susan Schumacher, Exec. Dir.’s Office, to Daniel Auld (Aug. 10, 2005) (providing chemical
combination and quantities for Texas); Telephone interview with Jim Frazier, General Counsel's Office
(Aug. 3, 2005).
Tom Anderson, Capital Punishment and the Utah State Prison (Jan. 15, 2004) (on file with author);
Telephone Interview with Bruce Bailey, Records, Corrections Coordinator (Aug. 3, 2005).
E-mail from Larry Traylor, Dir. of Commn’s, Va. Dep’t of Corr., to Daniel Auld, Fordham Law School
(July 7, 2005).
Penalty, (providing a broad description of execution process);
Telephone interview with Laurie Scamahorn, Media Liaison, Wash. Dep’t of Corr. (June 30, 2005).
Telephone interview with Melinda Brazzale, Public Info. Officer, Wyo. Dep’t of Corr. (June 30, 2005)
(explaining that the state did not have a protocol, but was developing one for an upcoming execution).