April 2006

Volume 18, No. 1(G)

So Long as They Die
Lethal Injections in the United States
Summary......................................................................................................................................... 1
Recommendations......................................................................................................................... 7
To State and Federal Corrections Agencies.......................................................................... 7
To State Legislators and the U.S. Congress .......................................................................... 8
I. Development of Lethal Injection Protocols ......................................................................... 9
Oklahoma................................................................................................................................. 13
Texas ......................................................................................................................................... 15
Tennessee................................................................................................................................. 17
Lethal Injection Machines ..................................................................................................... 18
Public Access to Lethal Injection Protocols....................................................................... 20
II. Lethal Injection Drugs .......................................................................................................... 21
Potassium Chloride................................................................................................................. 22
Pancuronium Bromide........................................................................................................... 24
Sodium Thiopental ................................................................................................................. 27
The Failure to Review Protocols .......................................................................................... 28
III. Lethal Injection Procedures................................................................................................ 30
Qualifications of Execution Team ....................................................................................... 32
Checking the IV Equipment ................................................................................................. 35
Level of Anesthesia Not Monitored .................................................................................... 36
IV. Physician Participation in Executions and Medical Ethics ............................................ 39
V. Case Study: Morales v. Hickman............................................................................................. 43
VI. Botched Executions............................................................................................................. 46
VII. International Human Rights and U.S. Constitutional Law .......................................... 55
International Human Rights Law......................................................................................... 55
U.S. Constitutional Law ......................................................................................................... 58
Appendix A: State Execution Methods ................................................................................... 63
Acknowledgements..................................................................................................................... 65

Summary
We didn’t discuss pain and suffering.
—William Henry Lloyd, Tennessee Department of Corrections lethal injection protocol
committee member1
Compared to electrocution, lethal gas, or hanging, death by lethal injection appears
painless and humane, perhaps because it mimics a medical procedure. More palatable to
the general public, lethal injection has become the most prevalent form of execution in
the United States. Thirty-seven of the thirty-eight death penalty states and the federal
government have adopted it; for nineteen states, it is the only legal method of execution.
In the standard method of lethal injection used in the United States, the prisoner lies
strapped to a gurney, a catheter with an intravenous line attached is inserted into his
vein, and three drugs are injected into the line by executioners hidden behind a wall. The
first drug is an anesthetic (sodium thiopental), followed by a paralytic agent
(pancuronium bromide), and, finally, a drug that causes the heart to stop beating
(potassium chloride).
Although supporters of lethal injection believe the prisoner dies painlessly, there is
mounting evidence that prisoners may have experienced excruciating pain during their
executions. This should not be surprising given that corrections agencies have not taken
the steps necessary to ensure a painless execution. They use a sequence of drugs and a
method of administration that were created with minimal expertise and little deliberation
three decades ago, and that were then adopted unquestioningly by state officials with no
medical or scientific background. Little has changed since then. As a result, prisoners in
the United States are executed by means that the American Veterinary Medical
Association regards as too cruel to use on dogs and cats.
Human Rights Watch opposes capital punishment in all circumstances. But until the
thirty-eight death penalty states and the federal government abolish the death penalty,
international human rights law requires them to use execution methods that will produce
the least possible physical and mental suffering. It is not enough for public officials to
believe that lethal injection is inherently more humane than the electric chair. States must
choose carefully among possible drugs and administration procedures to be sure they

1

Deposition, Abdur'Rahman v. Sundquist, et al., Case. No. 02-2236-III, April 4, 2003, p. 28.

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have developed the specific protocol that will reduce, to the greatest extent possible, the
prisoner’s risk of mental or physical agony.
The history of lethal injection executions in the United States reveals no such care on the
part of state legislators and corrections officials. The three-drug sequence was developed
in 1977 by an Oklahoma medical examiner who had no expertise in pharmacology or
anesthesia and who did no research to develop any expertise. Oklahoma’s three-drug
protocol was copied by Texas, which in 1982 was the first state to execute a man by
lethal injection. Texas’s sequence was subsequently copied by almost all other states that
allow lethal injection executions. Drawing on its own research and that of others,
Human Rights Watch has found no evidence that any state seriously investigated
whether other drugs or administration methods would be “more humane” than the
protocol it adopted.
Corrections agencies continue to display a remarkable lack of due diligence with regard
to ascertaining the most “humane” way to kill their prisoners. Even when permitted by
statute to consider other drug options, they have not revised their choice of lethal drugs,
despite new developments in and knowledge about anesthesia and lethal chemical
agents. They continue to use medically unsound procedures to administer the drugs.
They have not adopted procedures to make sure the prisoner is in fact deeply
unconscious from the anesthesia before the paralyzing second and painful third drugs
are administered.
Each of the three drugs, in the massive dosages called for in the protocols, is sufficient
by itself to cause the death of the prisoner. Within a minute after it enters the prisoner’s
veins, potassium chloride will cause cardiac arrest. Without proper anesthesia, however,
the drug acts as a fire moving through the veins. Potassium chloride is so painful that the
American Veterinary Medical Association prohibits its use for euthanasia unless a
veterinarian establishes that the animal being killed has been placed by an anesthetic
agent at a deep level of unconsciousness (a “surgical plane of anesthesia” marked by
non-responsiveness to noxious stimuli).
Pancuronium bromide is a neuromuscular blocking agent that paralyzes voluntary
muscles, including the lungs and diaphragm. It would eventually cause asphyxiation of
the prisoner. The drug, however, does not affect consciousness or the experience of
pain. If the prisoner is not sufficiently anesthetized before being injected with
pancuronium bromide, he will feel himself suffocating but be unable to draw a breath—
a torturous experience, as anyone knows who has been trapped underwater for even a
few seconds. The pancuronium bromide will conceal any agony an insufficiently

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anesthetized prisoner experiences because of the potassium chloride. Indeed, the only
apparent purpose of the pancuronium bromide is to keep the prisoner still, saving the
witnesses and execution team from observing convulsions or other body movements
that might occur from the potassium chloride, and saving corrections officials from
having to deal with the public relations and legal consequences of a visibly inhumane
execution. At least thirty states have banned the use of neuromuscular blocking agents
like pancuronium bromide in animal euthanasia because of the danger of undetected,
and hence unrelieved, suffering.
Sodium thiopental is the only drug with anesthetic properties used in lethal injections.
State protocols specify a dosage of sodium thiopental five to twenty times greater than
what would be used in surgery. If this amount of sodium thiopental is administered
properly, the prisoner will go limp, stop breathing, and lose consciousness within a
minute. The prisoner will not feel the suffocating effects of pancuronium bromide or the
agony of potassium chloride. If someone trained to establish and maintain intravenous
lines, induce anesthesia, and monitor consciousness were present and involved in the
lethal injection execution, the pain the prisoner would feel is the insertion of catheters
into his veins. But lethal injection protocols do not include measures to ensure the
anesthesia is quickly and effectively administered.
Administering drugs intravenously requires extensive training to ensure that the proper
intravenous access is secured with minimal pain, and that it is then maintained. Inserting
an intravenous catheter can be particularly difficult when the recipient has veins
compromised by drug use—not uncommon among prisoners—and constricted by
anxiety. Witnesses have described execution personnel poking repeatedly at prisoners
trying to find a good vein.
Standard medical procedures for intravenous administration of anesthesia during surgery
require that the equipment and the patient be monitored continuously by someone at the
patient’s side. Yet during lethal injection executions, the execution personnel are behind
a wall and window, separated by many feet from the prisoner. Most significantly,
standard medical procedures require a determination of the level of anesthesia before
surgery begins and throughout the procedure. During lethal injection executions, the
drugs are administered one after the other as quickly as the executioners can push the
syringe plungers into the intravenous equipment. There is no person trained in the
administration of anesthetics and the assessment of anesthetic depth present to ensure
the prisoner is appropriately and continuously anesthetized before the second and third
drugs are administered and throughout the execution; nor do execution team members
use equipment that could determine the condemned inmate’s level of consciousness.

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Lawyers for condemned prisoners, medical and veterinary anesthesiologists, and others
have suggested modifications to current lethal injection protocols that would minimize
the risk of pain and suffering currently posed. They advise, for example, having a trained
technician give the prisoner a single lethal injection of the painless barbiturate
pentobarbital, a method that would eliminate the risks from using paralyzing or painful
chemical agents. It is noteworthy that in Oregon, the only state that has legalized
physician-assisted suicide, doctors prescribe an overdose of pentobarbital or a similar
barbiturate for their terminally ill patients. When veterinarians euthanize animals, they
also use a single massive dose of a barbiturate. Another alternative proposed by
prisoners’ lawyers and anesthesiologists is that officials who insist on using the threedrug sequence take steps to ensure the effectiveness of the anesthesia, e.g., by having
present at the execution someone who is trained in anesthesiology and can assess the
prisoner’s level of consciousness before other drugs are injected and until the prisoner
has died.
Because of our opposition to the death penalty, Human Rights Watch does not endorse
any methods of lethal injection—either the current or proposed alternatives. We do
insist, however, that states make a concerted effort to ensure they have chosen the
method of executing their prisoners that meets the international human rights standard
of risking the least possible pain and suffering of the inmate.
It is difficult to understand why corrections officials keep following protocols which
were not sound when originally developed, and which advances in pharmacology and
anesthesia administration have rendered archaic at best, torturous at worst. The only
advantage of current protocols is that they yield executions that are relatively quick and
appear painless—whatever the reality. As such, the current method is easier for
witnesses to the execution as well as for the executioners. It also spares someone from
having to be at the prisoner’s side while he is being killed. An anesthesiologist who has
served as an expert witness in litigation for corrections agencies has observed, “The
people who are thinking about these things are not thinking about the inmate.”
The risks of pain and suffering faced by prisoners from the current lethal injection
protocol are not just hypothetical. There is mounting evidence, including execution
records and eyewitness testimony, of botched executions. At least some prisoners may
have been insufficiently anesthetized during their executions, experiencing pain but
unable to signal their distress, because they were paralyzed. There have been executions
where:

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•

For over an hour, medical technicians and then a physician tried to find a
suitable vein for intravenous access. The condemned inmate ended up with one
needle in his hand, one in his neck, and a catheter inserted into the vein near his
collarbone. One hour and nine minutes after he was strapped to the gurney, the
prisoner was pronounced dead.

•

A kink in the intravenous tubing stopped some of the drugs from reaching an
inmate. In the same execution, the intravenous needle was inserted pointing the
wrong way—towards the inmate’s fingers instead of his heart, which slowed the
effect of the drugs.

•

A prisoner who initially lost consciousness during his lethal injection execution
began convulsing, opened his eyes, and appeared to be trying to catch his breath
while his chest heaved up and down repeatedly. This lasted for approximately
ten minutes before his body stopped twitching and thrashing on the gurney.

In six lethal injection executions in California, the condemned inmates’ chests were
moving up and down several minutes after the administration of the anesthetic,
indicating that the inmates may not have been anesthetized deeply enough to avoid
experiencing the painful effects of the potassium chloride and that the paralyzing effects
of the pancuronium bromide might have prevented them from showing pain.
There have been at least forty-one cases before state and federal courts challenging the
constitutionality of lethal injection protocols. No court has ever ruled lethal injection
executions unconstitutional; many of the cases have been dismissed on procedural
grounds without a full evidentiary hearing.
In two recent cases in California and North Carolina, federal courts have been
sufficiently troubled by new evidence of possible problems with lethal injection
executions that they ordered corrections officials to change their lethal injection
procedures in particular ways, or the executions would be stayed. In both cases, the
courts proposed the presence throughout the execution of someone trained in
anesthesia. In the California case, the court also suggested the option of injecting the
condemned prisoner, Michael Morales, with a single massive dose of a barbiturate. The
California Department of Corrections rejected the use of a single barbiturate and was
not able to find anesthesiologists willing to monitor the prisoner’s level of anesthesia and
to make adjustments as necessary for the three-drug protocol execution. The court
stayed the prisoner’s execution and scheduled an evidentiary hearing on California’s

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lethal injection protocols for May 2 to 3, 2006. As of April 10, 2006, North Carolina has
not responded to the court order in its case. On April 26, the U.S. Supreme Court will
hear oral arguments about the procedures a prisoner must use to challenge the
constitutionality of a lethal injection protocol.
California’s inability to find anesthesiologists to participate in the execution of Morales
highlights the limits medical ethics place on the participation of medical professionals in
executions. Indeed, it was the growing practice of lethal injection executions that
prompted the medical community to clarify and solidify its position that physician
participation in executions violates the ethical precepts of the profession. The American
Medical Association (AMA) defines the prohibited participation to include monitoring
vital signs; attending or observing as a physician; rendering technical advice regarding
executions, selecting injection sites; starting intravenous lines; prescribing, preparing,
administering, or supervising the injection of drugs; inspecting or testing lethal injection
devices; and consulting with or supervising lethal injection personnel. Heeding these
guidelines, even doctors who work for corrections agencies have refused to participate in
the development of lethal injection protocols or their use. Nevertheless, despite the
AMA’s clear stance, some physicians ignore the ethical guidelines and offer their help
during lethal injection executions.
Human Rights Watch recognizes that medical ethics restricts the way states can conduct
lethal injection executions. This is a dilemma of the states’ making—by their refusal to
abolish capital punishment—and it is a dilemma states must resolve while heeding their
human rights responsibilities, if they continue to use lethal injection executions.
Until recently, the United States was the only country in the world that used lethal
injection as an execution method. Several other countries that have not yet abolished the
death penalty have followed: China started using lethal injection in 1997; Guatemala
executed its first prisoner by lethal injection in 1998; and the Philippines and Thailand
have had lethal injection execution laws in place since 2001 (although to date, they have
not executed anyone by this method).

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Recommendations
Human rights law is predicated on recognition of the inherent dignity and the equal and
inalienable rights of all people, including even those who have committed terrible
crimes. It prohibits torture and other cruel, inhuman or degrading punishment. Human
Rights Watch believes these rights cannot be reconciled with the death penalty, a form
of punishment unique in its cruelty and finality, and a punishment inevitably and
universally plagued with arbitrariness, prejudice, and error. Thus our first
recommendation is that states and the federal government abolish the death penalty. If
governments do not choose to abolish capital punishment, they must still heed human
rights principles by ensuring their execution methods are chosen and administered to
minimize the risk a condemned prisoner will experience pain and suffering. As state
lethal injection protocols have never been subjected to serious medical and scientific
scrutiny, Human Rights Watch recommends that each state suspends its lethal injection
executions until it has convened a panel of anesthesiologists, pharmacologists, doctors,
corrections officials, prosecutors, defense attorneys, and judges to determine whether or
not its lethal injection executions as currently practiced are indeed the most humane
form of execution.

To State and Federal Corrections Agencies
•

Review lethal injection protocols by soliciting input from medical and scientific
experts, and by holding public hearings and seeking public comment.

•

Stop using drugs that do not minimize the pain and suffering of the condemned
inmate. Ensuring the comfort of witnesses and the executioners should not be a
determining factor in which drugs are chosen for lethal injections. More
specifically, discontinue the use of pancuronium bromide or any other
neuromuscular blocking agent, because it masks any pain and suffering endured
by the inmate. Replace potassium chloride with drugs that do not cause
excruciating pain.

•

Anesthesia must be used in all lethal injections that involve painful or paralyzing
drugs. If anesthesia is used, ensure that trained personnel are present and able to
monitor the prisoner’s consciousness to ensure he is deeply and fully
anesthetized before any subsequent painful drugs are administered. Such
personnel would stand beside the prisoner throughout the execution.

•

Keep, retain, and make publicly available execution records, including execution
logs, autopsy reports, and toxicology reports.

•

Conduct periodic reviews of lethal injection protocols to ensure they reflect
medical and pharmacological developments.

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To State Legislators and the U.S. Congress
•

Abolish the death penalty.

•

If the death penalty is not abolished, suspend all lethal injection executions until
each state convenes a blue ribbon panel of medical, scientific, legal, judicial, and
correctional experts authorized to review and recommend changes to lethal
injection execution protocols as necessary to ensure the protocol adopted causes
the inmate the least possible pain and suffering.

•

Require corrections departments to adopt the method of execution, including
the specific method of lethal injection, that causes the inmate the least possible
pain and suffering.

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I. Development of Lethal Injection Protocols
It wasn’t a medical decision. It was based on the other states that had all used a similar dose.
—Donald Courts, pharmacy director at Louisiana State Penitentiary, explaining how
Louisiana chose the specific chemicals and dosage amounts for its lethal injection
protocol2
The only thing that mattered was that the guy ended up dead. . . . [The warden] wasn’t worried too
much about the amount of medicine. He had certainly used the same types of medicine, but . . . he
wasn’t totally concerned about the amounts of what it may or may not do. They ended up dead, and
that’s all he was worried about.
—Annette Viator, former chief legal counsel for Louisiana State Penitentiary, explaining
her discussion with a Texas warden regarding the drugs used during Texas’s lethal
injection executions3
Different methods of execution have succeeded one another throughout the twentieth
century in the United States, as changing public opinion and sensitivities has led public
officials to reject older methods in favor of newer ones. At the time of their
introduction, the electric chair and lethal gas were both touted as more humane forms of
execution compared to earlier methods.4 Each, however, proved cruel. Electrocution, in
particular, shocked witnesses when, for example, prisoners erupted in flames.5
2

Special Hearing, Code v. Cain, Case No. 138,860-A, February 11, 2003, Vol. II, p. 33.

3

Special Hearing, Louisiana v. Code, Case No. 138,860, March 18, 2003, Vol. II, p. 58-59.

4

Concerns over the barbarity of hanging led states to change their method of execution from hanging to
electrocution. Even though the first electrocution executions were terribly botched, by 1913, thirteen states had
changed to electrocution because of “a well-grounded belief that electrocution is less painful and more humane
than hanging.” Malloy v. South Carolina, 237 U.S. 180, 185 (1915) (noting the adoption of electrocution by
eleven states following the decision by a New York commission that it was more humane). See generally Craig
Brandon, The Electric Chair: An Unnatural American History (New York: McFarland & Company, 1999), p. 6788. By 1949, twenty-six states had changed to electrocution. After numerous electrocution botches, states
began rejecting electrocution execution methods in favor of lethal gas. Nevada was the first state to adopt lethal
gas executions, in 1921. In an attempt to make lethal gas executions more humane, the Nevada legislature
passed a law providing that lethal gas would be administered “without warning and while [the inmate was]
asleep in his cell.” See William J. Bowers, Glenn L. Pierce, and John F. McDevitt, Legal Homicide: Death as
Punishment in America, 1864-1982 (Boston: Northeastern University Press, 1984), p. 12. In State v. Gee Jon,
the Nevada Supreme Court emphasized that the legislature “sought to provide a method of inflicting the death
penalty in the most humane manner known to modern science.” 211 P. 676, 682 (Nevada 1923).
5

On August 10, 1982, Virginia executed Frank J. Coppola by electrocution. An attorney who was present stated
that it took two fifty-five-second jolts to kill Coppola. During the second jolt, Coppola’s head and leg caught on
fire, and the room smelled like smoke and burning flesh. Deborah W. Denno, “Is Electrocution an
Unconstitutional Method of Execution? The Engineering of Death over the Century,” William and Mary Law
Review, 1994, p. 551, 664-665. On July 8, 1999, Florida executed Allen Lee Davis by electrocution. Davis’s

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In the late 1970s, states turned to lethal injection, believing this was both a less
expensive as well as a more humane way to kill condemned inmates.6 In 1977,
Oklahoma legislators passed the first lethal injection statute.7 Texas passed a lethal
injection statue the next day.8 By 1981, five states had adopted lethal injection statutes.9
Today, thirty-seven of the thirty-eight death penalty states have lethal injection statutes.10
In nineteen states, lethal injection is the only method of execution allowed.11
States in the United States rely almost solely on lethal injections to execute condemned
inmates. All twelve executions to date (as of April 1, 2006) have been by lethal injection,
as were all sixty in 2005.12 Of the 1,016 executions in the United States since the death
body was lit on fire during the electrocution. His face, body, and head were deeply burned. During the
execution, Davis’s face became red, and he tried to get the guard’s attention by making noises that witnesses
described as “screams,” “yells,” “moans,” “high-pitched murmurs,” “squeals,” or “groans.” Brief for Petitioner,
Bryan v. Moore, 528 U.S. 960 (1999), p. 3 (citations omitted). “Before he was pronounced dead … the blood
from his mouth had poured onto the collar of his white shirt, and the blood on his chest had spread to about the
size of a dinner plate, even oozing through the buckle holes on the leather chest strap holding him to the chair.”
“Davis Execution Gruesome,” Gainesville Sun, July 8, 1999, p. A1. Davis’s execution was the first in Florida’s
new execution chair, built especially to accommodate his 350-pound frame. Later, Florida Supreme Court
Justice Leander Shaw said, “The color photos of Davis depict a man who—for all appearances—was brutally
tortured to death by the citizens of Florida.” Provenzo v. State, 744 So.2d 413, 440 (Florida 1999).
6

Deborah Denno, “Lethally Humane?” America’s Experiment with Capital Punishment: Reflections on the Past,
Present, and Future of the Ultimate Penal Sanction, James R. Acker, Robert M. Bohm, and Charles S. Lanier,
eds. (Durham: Carolina Academic Press, 2003), p. 711. E.g., in 1981, several years after Oklahoma became
the first state to adopt lethal injection, a spokesperson for the Oklahoma Corrections Department confirmed that
the state changed from the electric chair to lethal injection for “humane” reasons: “People don’t realize it, but the
electric chair can take 11 minutes to kill people. The first shock knocks you unconscious, but then it would just
cook you. You would literally fry.” Mary Thornton, “Death By Injection,” Washington Post, October 6, 1981, p.
A1. “Being a former farmer and horse trainer, I know what its like to try to eliminate an injured horse by shooting
him . . . Now you call the veterinarian and the vet gives it a shot and the horse goes to sleep—that’s it. I myself
have wondered if maybe this isn’t part of our problem [with capital punishment], if maybe we should review and
see if there aren’t even more humane methods now—the simple shot or tranquilizer.” Henry Scharzschild,
“Homicide by Injection,” New York Times, December 23, 1982, p. A15 (quoting Ronald Reagan). On National
Public Radio’s Talk of the Nation, aired February 23, 2006, State Senator David Ralston, a Republican from
Georgia, stated: “I know other states debated the propriety of using electrocution and our Supreme Court here
in 2001 decided that that was a cruel and inhumane form of punishment. The legislature in response to that
adopted what was becoming more accepted, and that was the lethal injection.” See Talk of the Nation
Transcript, http://www.npr.org/templates/story/story.php?storyId=5230227 (retrieved April 13, 2006) (copy on
file at Human Rights Watch).
7

Human Rights Watch telephone interview with Dr. Jay Chapman, former Oklahoma chief medical examiner,
Santa Rosa, California, March 23, 2006.
8

See Vince Beiser, “A Guilty Man,” Mother Jones, September/October 2005,
http://www.motherjones.com/news/feature/2005/09/guiltyman.html (retrieved March 30, 2006). See also Death
Penalty Information Center (DPIC), “Execution Database,” http://www.deathpenaltyinfo.org/getexecdata.php
(retrieved March 31, 2006).
9

DPIC, “Execution Database.”

10

Nebraska is the only state that requires execution by electrocution. DPIC, “Methods of Execution,”
http://www.deathpenaltyinfo.org/article.php?scid=8&did=245 (retrieved March 31, 2006).

11

See Appendix A for a list of states, which allow the death penalty, and the methods of execution allowed.

12

DPIC, “Methods of Execution.”

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penalty was reinstated in 1976, 848 were by lethal injection—three by the federal
government and the rest by states.13 At the start of 2006, there were 3,373 prisoners on
death row—3,363 of whom face the possibility of a lethal injection execution.14
The statutes of fifteen states use language similar to Oklahoma’s, requiring the use of a
“lethal quantity of an ultra-short acting barbiturate or other similar drug in combination
with a chemical paralytic to cause death.”15 It is not clear if the legislators intended the
prisoner to die from the anesthetic or from the asphyxiation caused by the paralytic
agent, or both. According to Dr. Jay Chapman, the architect of Oklahoma’s two-drug
statute, he “didn’t care which drug killed the prisoner, as long as one of them did.”16
Thirteen states refer to an injection of a “substance or substances in a quantity to cause
death” or language very close to that wording.17 Seven states provide simply for the use
of “lethal injection” executions.18 Two state statutes use slightly different language from
all the rest.19 Only one state statute mandates corrections officials to choose among
lethal injection options to find the most humane procedure possible.20 Despite the
variations in state statutory language authorizing lethal injections, thirty-six state
corrections agencies today use the same three-drug sequence of sodium thiopental,
pancuronium bromide and potassium chloride in their lethal injection drug protocols.21
No state statute prescribes drug dosages and the specific methods of administration;
legislators have left these decisions to corrections officials. Nor does any state statute
prescribe the manner of intravenous line access, the certification or training required for
those who participate in executions, or other details concerning the administration of the
13

Ibid.

14

Criminal Justice Project, NAACP Legal Defense Fund, Death Row USA, January 1, 2006,
http://www.naacpldf.org/content/pdf/pubs/drusa/DRUSA_Winter_2006.pdf (retrieved April 13, 2006).

15

These fifteen states with two-drug statutes are: Arkansas, Idaho, Illinois, Maryland, Mississippi, Montana,
New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, South Dakota,
Wyoming.
16

Interview with Chapman.

17

These thirteen states with statutes that refer generally to “substances” or “drugs” sufficient to cause death
are: Arizona, California, Connecticut, Delaware, Georgia, Indiana, Kansas, Kentucky, Louisiana, New York,
Ohio, Texas, and Washington.
18

These seven states with simple “lethal injection” statutes are: Alabama, Florida, Missouri, South Carolina,
Tennessee, Utah, Virginia.

19

These two states are Colorado and Nevada. See Colorado Review Statute Section 16-11-401 (“sodium
thiopental or other equally or more effective substance sufficient to cause death”); Nevada Review Statute
Annotated Section 176.355(1) (“a lethal drug”).

20

In Kansas, the statute reads: “The mode of carrying out a sentence of death in this state shall be by
intravenous injection of a substance or substances in a quantity sufficient to cause death in a swift and humane
manner.” Kansas Criminal Procedure Code Section 22-4001.
21

The “two drug” statutes do not expressly prohibit the use of additional drugs, so the correction agencies were
able to adopt three-drug protocols.

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drugs or monitoring of the procedures.22 Legislators have given correctional agencies the
authority “to promulgate necessary rules and regulations to facilitate the implementation
of execution by lethal injection.”23 For example, in Florida the legislature did not specify
how death by lethal injection would be accomplished, but left this decision up to the
Department of Corrections, “because it has personnel better qualified to make such
determinations.”24
The public record offers scant insight into the basis on which state legislatures that
chose specific lethal injection drugs did so. An analysis of state statutes and legislative
histories provides no evidence that legislatures—other than possibly Oklahoma—relied
on, or even sought input from, medical and scientific experts.25 Rather, they simply
copied the protocols developed by their colleagues from other states. For example:
•

A Circuit Court Judge in Kentucky noted:
In developing a lethal injection protocol, the Commonwealth of
Kentucky, Department of Corrections, did not conduct any
independent scientific or medical studies or consult any medical
professionals concerning the drugs and dosage amounts to be
injected into the condemned. Kentucky appears to be no different
from any other state or the Government of the United States.26

•

When asked how the lethal injection protocol committee put together
Tennessee’s procedures, a committee member responded: “There wasn’t a lot of
discussion on it once the team had access to the information that was provided
from other states. Indianapolis, Indiana, Florida, Texas, they all used the same
chemicals.”27 The Tennessee Supreme Court found that Tennessee’s protocol

22

Deborah Denno, “When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of
Electrocution and Lethal Injection and What it Says About Us,” Ohio State Law Journal, Vol. 63, 2002, p. 207260 (includes redacted versions of state lethal injection protocols).
23

Tennessee Code Annotated 40-23-114(c).

24

Sims v. State, 754 So. 2d 657, 670 (Florida 2000).

25

Human Rights Watch telephone interview with Deborah Denno, professor of law at Fordham University Law
School, New York, New York, March 16, 2006. Denno has conducted the only existing comprehensive study of
lethal injection state protocols. In addition to her academic work, she serves as an expert witness on behalf of
prisoners challenging state lethal injection procedures.

26

Baze, et al. v. Rees, et al., Case No. 04-CI-1094, July 8, 2005, p. 6.

27

Testimony of Warden Richard Peabody, Special Hearing, Abdr’Rahman v Sundquist et al., Case No. 022236-III,Vol. II, September 16, 2003, p. 63.

HUMAN RIGHTS WATCH VOL. 18, NO. 1(G)

12

“was developed simply by copying the state method currently in use by some
thirty other states.”28
•

According to a memorandum from the Washington State Department of
Corrections: “All of our policies and procedures have been designed utilizing the
State of Texas as a model … [T]he states of Texas and Missouri have conducted
numerous executions and remain the best and tested source of information.”29

•

A Wyoming warden noted “that Wyoming’s injection procedure is cloned from
the Texas injection procedure. Visited Warden Jack Pursley at Huntsville, Texas
and participated in an execution seminar [sic]. So I am confident that Wyoming’s
policy based upon proven Texas procedures will be reliable.”30

•

According to a former warden of the Colorado State Penitentiary, Colorado
corrections officials went to Texas and Oklahoma to examine how they
conducted lethal injection executions and then copied them, because their lethal
injection protocols “seemed time-honored, tested, well-designed, and
effective.”31

•

The Secretary of Pennsylvania’s Department of Corrections noted that they
“adopted almost to a T” the Texas lethal injection protocol.32

Oklahoma
In 1977, Oklahoma enacted the first lethal injection statute. Its history illustrates the
minimal inquiry legislators conducted before selecting a specific method of lethal
injection. Facing the expensive prospect of fixing the state’s broken electric chair, the
Oklahoma legislature was looking for a cheaper and more humane way to execute its

28

Abdur’Rahman v. Bredesen, et al., Tennessee Supreme Court, October 17, 2005, No. M2003-01767-COAR3-CV, p. 77a.

29

Unsigned memorandum from the State of Washington, Department of Corrections, to Louisiana State
Penitentiary Warden Richard L. Peabody, dated October 10, 1990, read into evidence by Warden Peabody,
Louisiana v. Code, p. 108.

30

Letter from Wyoming Warden Duane Shillinger to Louisiana Warden Richard Peabody, dated October 2,
1990, read into evidence by Warden Peabody, Louisiana v. Code, p. 108-109.

31

Human Rights Watch telephone interview with Gene Atherton, former warden of the Colorado State
Penitentiary (where death row is located in Colorado), March 30, 2006.

32

Human Rights Watch telephone interview with Jeffrey A. Beard, secretary, Pennsylvania Department of
Corrections, March 28, 2006.

13

HUMAN RIGHTS WATCH VOL. 18, NO. 1(G)

condemned inmates.33 State Assembly member Bill Wiseman wanted to introduce a bill
in the Oklahoma House of Representatives allowing for lethal injection executions in
Oklahoma.34 In 1976, he approached the Oklahoma Medical Association for help
developing a drug protocol, but it refused to get involved based on ethical concerns
about the cooperation of medical professionals in the development of execution
methods.35 Wiseman approached Dr. Jay Chapman, the state’s medical examiner, and
asked for his help in drafting a lethal injection statute.36 Despite having “no experience
with this sort of thing,” Chapman agreed to help Wiseman.37 Sitting in Wiseman’s office
in the Capitol, Chapman dictated the following lines, which Wiseman jotted down on a
yellow legal pad: “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.”38 Meanwhile, State Senator Bill Dawson,
concerned about the cost of replacing Oklahoma’s broken electric chair, was also
interested in introducing a lethal injection bill in the Oklahoma Senate. Senator Dawson
consulted with his friend, Dr. Stanley Deutsch, then head of the Oklahoma Medical
School’s Anesthesiology Department.39 After reviewing the language Chapman had
composed for Assembly member Wiseman, Deutsch noted, in a letter to Senator
Dawson, that anesthetizing condemned inmates would be a “rapidly pleasant way of
producing unconsciousness” leading to death.40
Oklahoma’s state statute copies nearly word-for-word the methods proposed by
Chapman and approved in Deutsch’s brief letter, stating that “the punishment of death
must be inflicted by continuous, intravenous administration of a lethal quantity of an
ultra-short-acting barbiturate” in “combination with a chemical paralytic agent until
death is pronounced by a licensed physician according to accepted standards of medical
practice.”41 There is no evidence that Oklahoma state legislators consulted any other
33

Denno, “When Legislatures Delegate Death,” p. 96.

34

Beiser, “A Guilty Man.”

35

Ibid.

36

Interview with Chapman.

37

Ibid.

38

Ibid.

39

Denno, “When Legislatures Delegate Death,” p. 95.

40

Letter from Stanley Deutsch, Ph.D., M.D., professor of anesthesiology, University of Oklahoma Health
Sciences Center, to the Honorable Bill Dawson, Oklahoma state senator, February 28, 1977 (copy on file with
Human Rights Watch) (Deutsch Letter).
41

Oklahoma Statue Annotated Title 22, Section 1014(A). Also, see Deutsch Letter (Deutsch writes that unconsciousness
and then death would be produced by “the administration … intravenously … in [specified] quantities of …an ultra short
acting barbiturate” in “combination” with a “nueormuscular [sic] blocking agent” to create a “long duration of paralysis”).
See also Oklahoma Engrossed Senate Bill No. 10, March 2, 1977 (copy on file with Human Rights Watch). Some
senators disagreed with the state’s adoption of lethal injection executions. One senator’s proposed amendment, which
failed, called for “inserting the following after the word ‘by’ on line four, adopting the Biblical procedure of ‘Eye for Eye’, i.e.,

HUMAN RIGHTS WATCH VOL. 18, NO. 1(G)

14

medical experts before adopting their lethal injection statute.42 Human Rights Watch
asked Chapman why he chose the two drugs (an ultra-short-acting barbiturate and a
paralytic agent) for lethal injection executions. He stated: “I didn’t do any research. I just
knew from having been placed under anesthesia myself, what we needed. I wanted to
have at least two drugs in doses that would each kill the prisoner, to make sure if one
didn’t kill him, the other would.”43 The Oklahoma state legislature has not significantly
amended the statute regarding the drugs to be used during lethal injections since its
original enactment.44
In addition to his work on the statute, Chapman developed the original three-drug
protocol used by the Oklahoma Department of Corrections.45 Although Oklahoma’s
statute specifies two drugs, Chapman included a third drug, potassium chloride.46 When
Human Rights Watch asked Chapman why he added a third drug to the two drugs
specified in the statute, he replied, “Why not?” He went on to explain that, even though
the other chemicals, in the dosages called for, would kill the prisoner, “You just wanted
to make sure the prisoner was dead at the end, so why not just add a third lethal drug?”
He is not sure why he picked potassium chloride. “I didn’t do any research … it’s just
common knowledge. Doctors know potassium chloride is lethal. Why does it matter why
I chose it?”47

Texas
Almost immediately after Oklahoma passed its lethal injection statute, the Texas
legislature passed a law authorizing executions by lethal injection.48 Within ten years of
the law’s enactment, Texas had executed fifty-three prisoners by lethal injection.49 The
law delegates responsibility for developing protocols regarding the lethal substances to
be used to the state corrections agency.50 Because Texas was the first state to actually
execute anyone by lethal injection, and immediately established itself as the state with the

each person convicted shall be executed in the same manner as the death of the victim for which the conviction occurred,
and striking all remaining language through line eight on p. 2.” Amendment Motion, April 20, 1977 (copy on file with
Human Rights Watch).
42

Denno, “When Legislatures Delegate Death,” p. 96.

43

Interview with Chapman.

44

Oklahoma Statue Annotated, Title 22, Section 1014(A).

45

Interview with Chapman.

46

Ibid.

47

Ibid.

48

Denno, “When Legislatures Delegate Death,” p. 96.

49

DPIC, “Execution Database.”

50

Texas Criminal Procedure Code Annotated Article 43.14.

15

HUMAN RIGHTS WATCH VOL. 18, NO. 1(G)

most lethal injection executions,51 its protocols have had enormous influence on other
states. Many state corrections officials consulted with Texas officials when developing
their own protocols.52
Like its Oklahoma predecessor, the Texas protocol involves the use of three drugs.53 But
the state has refused to provide additional information on its procedures for lethal
injections, citing security concerns.54 The observations of Louisiana corrections officials
who visited Texas shed light on the ad hoc and unscientific manner in which Texas has
conducted its lethal injection executions.
In 1990, the Louisiana Department of Corrections formed a committee to create a lethal
injection protocol. As a member of the committee, the Department’s chief legal counsel
consulted with the warden responsible for executions in the Texas Department of
Corrections. She found the experience “surprising.”55 The warden refused to speak with
the attorney over the phone about his protocols, explaining “he didn’t say these things
on the phone that he would rather say in person.”56
When the attorney arrived in Texas with other members of the committee, the warden
“asked us if any of us had tape recorders, if any of us were wired.”57 The warden then
proceeded to speak about Texas’s lethal injection protocols. According to the attorney,
“He didn’t really have so much of a policy about it, as he did just sort of—they did
whatever worked at the time. He pretty much told us he didn’t have a strict policy.”58
51

Texas has executed 362 condemned inmates by lethal injection. DPIC, “Execution Database.”

52

E.g., Colorado, Florida, Indiana, Kentucky, Missouri, Tennessee, Washington, and Wyoming (as described at
the beginning of the section of this report on “Development of Lethal Injection Protocols”).

53

Texas Department of Criminal Justice, “Death Row Facts,” http://www.tdcj.state.tx.us/stat/drowfacts.htm
(retrieved March 21, 2006).

54

Letter to Alberta Phillips, Editorial Department of the Austin-American Statesman, from James L. Hall,
assistant general counsel, Office of the General Counsel, Texas Department of Criminal Justice, dated January
2, 2004. Hall explains:
Information about execution procedures is held in the strictest of confidence, is generally
not reduced to writing, and is known only to a few people within the Department. That
confidentiality is maintained to ensure that security procedures established for executions
are not compromised. Thus, to the extent we have written policies and procedures
responsive to your request, that information has been found to be confidential and not
available to the public.

(copy of letter on file with Human Rights Watch).
55

See Testimony of Annette Viator, Special Hearing, Cain v. Code, Case No. 138,860-A, March 18, 2003, Vol.
II, p. 32.

56

Ibid.

57

Ibid.

58

Ibid., p. 33.

HUMAN RIGHTS WATCH VOL. 18, NO. 1(G)

16

When the attorney inquired about the “medical portion” of Texas’s lethal injection
protocol, the warden told her:
[T]hat the only thing that mattered was that the guy ended up dead and
that he wasn’t worried too much about the amount of medicine. He had
certainly used the same types of medicine, but that he wasn’t totally
concerned about the amounts or what it may or may not do. They ended
up dead, and that’s all he was worried about. The rest of our
conversation with him tracked that same thing. He was not terribly
concerned about policy, procedure, or who did what, when, where. Just
so the right result happened.59
The Louisiana State Penitentiary pharmacy director has recounted a conversation he had
in 1990 with the Texas Department of Corrections pharmacy director about the drugs
Texas used in its lethal injections:
We were getting ready to hang up the phone, and I said, ‘I have but just
one question I need to ask you. Every other state I have spoken to is
using 2 grams of sodium pentothal. Why are y’all using five?’ And he
started laughing and said, ‘Well, you see, when we did our very first
execution, the only thing I had on hand was a 5-gram vial. And rather
than do the paperwork on wasting 3 grams, we just gave all five.’60
Another member of the Louisiana committee observed a Texas lethal injection and
noted that the administration of the drugs was on a “time frame that was fairly tight.”61
It seemed to him the execution team simply administered the drugs one after the other,
without pausing to ascertain whether the drugs were having their intended effect.62

Tennessee
In 1998, in response to the passage of a lethal injection statute, the Commissioner of
Tennessee’s Department of Corrections set up an “ad hoc” committee to develop an
59

Ibid.

60

Testimony of Donald Courts, Special Hearing, Louisiana v. Code, Case No. 138,860, March 18, 2003, Vol. II,
p. 58-59.

61

Testimony of Deputy Warden Richard Peabody, Special Hearing, Louisiana v. Code, Case No. 138,860A,
September 16, 2003, p. 48.

62

Regardless of any misgivings they had, the Louisiana execution protocol team chose a lethal injection
protocol for Louisiana that “paralleled the procedure in Texas fairly closely.” Ibid., p. 46.

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HUMAN RIGHTS WATCH VOL. 18, NO. 1(G)

execution protocol. The committee was composed solely of department personnel, none
of whom had any medical or scientific background.63 The group met four times over five
months; none of the meetings were public nor did the group seek public input.64 The
committee did not consult with physicians or pharmacologists, or with any other person
who had medical or scientific training.65 The committee gave Warden Ricky Bell, who
had no college degree, the task of putting together the execution protocol.66 An internal
memorandum, written by a committee member, warned the committee about other
states’ problems with executions by lethal injection.67 Nonetheless, Bell modeled
Tennessee’s present lethal injection execution protocols entirely on information he
received from two other states’ corrections departments—Indiana and Texas.68

Lethal Injection Machines
The lack of care with which states developed their lethal injection protocols is well
exemplified by their willingness to buy lethal injection machines from Fred Leuchter.
From 1979 to 1990, Leuchter, a layperson with no engineering, medical or
pharmacological training, was the only supplier of execution equipment in the United
States. He built, installed, and repaired many different types of machinery for executions,
including gas chambers, electrocution chairs, and the now-defunct lethal injection
machine.69 He tested his theories about what types and dosages of chemicals to use in
the lethal injection machine by experimenting on pigs.70 In his promotional material,
Leuchter promised that his lethal injection machine would “insure a problem-free
63

See Memorandum from Jim Rose, assistant commissioner of operations, to Donal Campbell, commissioner
for the Tennessee Department of Corrections, June 22, 1998 (copy on file with Human Rights Watch). For a
description of the committee members qualifications (or lack thereof), see Deposition of Debra K. Inglis, general
counsel for the Tennessee Department of Corrections, Rahman v. Sundquist, et al., Case No. 02-2236-III,
March 25, 2003, p. 15-16, 38 (copy on file with Human Rights Watch) (Deposition of Inglis).

64

Memorandums from the four meetings are on file with Human Rights Watch. See also Testimony of Ricky
Bell, Transcript of Proceedings, Abu-Ali Abdur’Rahman v. Sundquist, Case No. 02-2236-III, May 29, 2003,
p.204 (copy on file with Human Rights Watch) (Testimony of Bell).

65

Inglis Deposition, p. 15-16; Testimony of Bell, p. 200-209.

66

Testimony of Bell, p. 200.

67

Memorandum from Virginia Lewis to the Committee Members (copy on file with Human Rights Watch).
Quoting from a 1997 National Legal Aid and Defender Association study, the memo states: “Lethal injections
are also the most frequently botched means of execution—defined to include unanticipated problems or delays
that caused, or could have caused, unnecessary agony for the prisoner and/or witnesses.” Lewis continues in
her own words, “Unfortunately the critics consider length of time and difficulty in finding suitable veins to be
‘botched’ cases and the criticism is worse when veins collapse and the IV has to be restarted.” Ibid. (It is not
clear from the committee’s notes or committee member trial testimony what Lewis’s title was within the
Department of Corrections.)

68

Petitioner’s Brief, Abdur’Rahman v. Bredesen, et al., February 15, 2006, p. 4.

69

Beiser, “A Guilty Man.” See also James Bandler, “Fred Leuchter: Killing Time with Death’s Efficiency Expert,”
In These Times, June 20-July 3, 1990, p. 22.
70

Stephen Trombley, The Execution Protocol: Inside America’s Capital Punishment Industry (New York: Crown
Publishers, 1992), p. 76-78.

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18

execution.”71 Seventeen states purchased the machine.72 When he had an order to fill,
Leuchter manufactured the machine in the basement of his house.73
The lethal injection machine had two parts—a “control module” and a “delivery
module”—which allowed the executioners to start the lethal injection from a room
separate from the inmate. The control module essentially consisted of two on/off
switches, only one of which actually triggered the chemicals to flow from the delivery
module. In this way, the two people assigned to push the two buttons would not know
which one of them actually started the administration of the lethal injection drugs. The
delivery module contained two syringes filled with saline, two syringes filled with sodium
thiopental, two syringes filled with pancuronium bromide, and two syringes filled with
potassium chloride. Once the machine was activated, it delivered the drugs, with saline
flushes in between, for ten seconds each, one minute apart from one another, to an
intravenous line running from the delivery module to the prisoner’s vein. With the use of
this machine, an execution should take “four minutes.”74
Leuchter’s execution equipment business stopped abruptly in 1990. It did not stop
because correction agencies realized that Leuchter was totally unqualified to construct
such equipment, but because he testified as an expert witness on behalf of a Holocaust
denier.75 In the course of discrediting Leuchter as an expert witness, the prosecutor
established that Leuchter in fact had no engineering credentials, and held only a Bachelor
of Arts degree in history.76

71

Fred A. Leuchter Associates, Inc., “Execution by Lethal Injection Missouri: Lethal Injection Machine Manual
State of Missouri,” October 15, 1988 (copy on file with Human Rights Watch).

72

According to Leuchter, during his time in business, he consulted with or provided equipment to twenty-seven
states. Seventeen states and the United States Army purchased lethal injection machines from Leuchter. Those
states included: Arizona, California, Colorado, Delaware, Illinois, Mississippi, Missouri, Montana, Nevada, New
Jersey, New Mexico, North Carolina, Oregon, Texas, Utah, Washington, and Wyoming. Denno, “Is
Electrocution an Unconstitutional Method of Execution?” p. 627, footnote 496.
73

Trombley, The Execution Protocol, p. vii.

74

Ibid, p. 78.

75

Leuchter himself denied that the Nazis could have killed six million Jews in gas chambers. His anti-Holocaust
conclusions were printed in a book, The Leuchter Report. Fred Leuchter, The Leuchter Report: The End of
Myth: An Engineering Report on the Alleged Execution Gas Chambers of Auschwitz, Birkenau and Madjanek,
(Poland: Samisdat Publishers, Ltd., 1988), http://www.ihr.org/books/leuchter/leuchter.toc.html (retrieved April 1,
2006).

76

Bandler, “Fred Leuchter,” p. 22-23. Despite the fact that Leuchter admitted misrepresenting himself as an
engineer to various states when he provided equipment or advice for their death penalty practice, Leuchter
never faced criminal charges. Consent Agreement, Commonwealth v. Leuchter, No. EN 90-102, Massachusetts
District Court, signed June 11, 1991, p. 1.

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HUMAN RIGHTS WATCH VOL. 18, NO. 1(G)

It is not clear how many states actually used Leuchter’s lethal injection machine or how
many prisoners were unwitting guinea pigs for his deadly invention. What is remarkable,
however, is that states ever bought Leuchter’s lethal injection machines in the first place.
One can only speculate as to how much—if any—research the states did into Leuchter
and his lethal injection machine before they signed purchase agreements.

Public Access to Lethal Injection Protocols
Human Rights Watch is aware of only one state, New Jersey, which has ever opened its
lethal injection protocol to public input and comment.77 While thirty-six lethal injection
states make public the names of the drugs used during their lethal injection executions
and the basic method of administration, corrections officials claim that reasons of
security prevent them from making the entire protocol available to the public. Human
Rights Watch does not know if the parts of the protocols that remain secret provide
fuller details of what the execution team is supposed to do before, during, and after the
execution.
Some states do not even have written protocols. Louisiana did not have a written
protocol until 2002, nine years after the legislature authorized lethal injection executions.
During that period, seven prisoners were executed by lethal injection, with the protocol
passed down by “word of mouth” between members of various execution teams.78 The
Florida Department of Corrections has not promulgated an administrative regulation
nor published any guidance prescribing the lethal injection procedures it uses to execute
condemned prisoners. The Florida Supreme Court agreed with the corrections
department that a published protocol is not needed because the department has the
authority to change its rules any time for any reason.79

77

In 2001, the New Jersey Department of Corrections (NJDOC) proposed to re-adopt and amend the
regulations setting forth New Jersey’s lethal injection protocol. The amendment also included the removal of the
emergency crash cart from the execution chamber. New Jerseyans Against the Death Penalty (NJDAP) brought
an action challenging the regulations. The court held that the proposed changes in the regulations lacked an
adequate administrative record demonstrating that they were based upon “reasoned medical opinion.” In Re
Readoption, 367 New Jersey Superior, p. 69. Without such a record, the court found, NJDOC was unable to
demonstrate that the regulations at issue comport with contemporary standards of decency and morality. Ibid.
NJDOC subsequently held a public hearing on February 4, 2005 but has yet to promulgate final regulations.
The process was halted when then Governor Richard Codey signed into law a death penalty moratorium for
New Jersey at the beginning of 2006. See “New Jersey's execution protocol up for comment,”
http://www.democracyinaction.org/dia/organizations/ncadp/news.jsp?key=1223&t (retrieved March 22, 2006).

78

Testimony of Dora Rabalais, director of legal programs at Louisiana State Penitentiary, Angola, Special
Hearing, Code v. Cain, Vol. 1, No. 138,860-A, February 10, 2003, p. 25. “Word of mouth” from Testimony of
David Meredith, former member of Louisiana State Penitentiary Execution Team, Special Hearing, Code v.
Cain, Vol. 1, No. 138,860-A, February 10, 2003, p. 19.

79

Sims v. State, 754 So. 2d 657, 670 (Florida 2000).

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II. Lethal Injection Drugs
I don't know the medical rationale, no. . . . Regarding the specific amounts of individual drugs, I have
no knowledge as to what drug quantities were used, or why they may have differed from other states, no, I
do not . . . that was beyond me.
—Richard Peabody, Louisiana State Penitentiary deputy warden, responding to a
question about the drugs used in Louisiana’s lethal injection protocol, which he helped
to develop80
It’s not about the prisoner. It’s about public policy. It’s about the audience and prison personnel who
have to carry out the execution.
—Dr. Mark Dershwitz, anesthesiologist and expert witness for state corrections
departments on lethal injection drug protocols81
Thirty-six states use the same three-drug sequence for lethal injections: sodium
thiopental to render the condemned inmate unconscious; pancuronium bromide to
paralyze the condemned inmate’s voluntary muscles; and potassium chloride to rapidly
induce cardiac arrest and cause death.82
This three-drug sequence puts the prisoner at risk of high levels of pain and suffering. If
he is not appropriately anesthetized, he will be awake when he is paralyzed by the
pancuronium bromide and will experience suffocation when he is not able to breathe.83
If the anesthesia remains insufficient, he will experience excruciating pain from the
potassium chloride. Nevertheless, according to Human Rights Watch’s research, no state
which has used these three drugs for lethal injections has ever changed to different
drugs.84
80

Louisiana v. Code, p. 74, 86.

81

Human Rights Watch telephone interview with Dr. Mark Dershwitz, professor of anesthesiology at the
University of Massachusetts, Boston, Massachusetts, March 1, 2006.
82

Of the states using lethal injections for executions, Nevada is the only state which will not publicly reveal its
drug protocol. Human Rights Watch telephone interview with Fritz Schlommater, Nevada Department of
Corrections, March 31, 2006.

83

Testimony of Dr. Mark Dershwitz, Reid v. Johnson, No. Civ. A. 3:03CV1039, August 30, 2004, p. 26 (“And I
freely admit that a person who’s rendered paralyzed with a drug like pancuronium who also happens to be
awake, that would be considered horrible. And those of us who routinely use pancuronium in our practice, take
great pains to make sure that none of our patients are awake and paralyzed at the same time.”) (Dershwitz
Testimony).

84

For example, in 1999, New Jersey was facing its first lethal injection execution. The NJDOC was aware of
potential problems with the drugs called for in the state statute. In 1983, when New Jersey’s lethal injection
statute was passed, a doctor at the NJDOC warned the NJDOC assistant commissioner that he had “concerns
in regard to the chemical substance classes from which the lethal substances may be selected.” The

21

HUMAN RIGHTS WATCH VOL. 18, NO. 1(G)

Potassium Chloride
Potassium chloride is the drug that causes death in an execution under current lethal
injection protocols. Although the other two drugs are administered in lethal dosages and
would, in time, produce the prisoner’s death, potassium chloride should cause cardiac
arrest and death within a minute of injection.85 While potassium chloride acts quickly, it
is excruciatingly painful if administered without proper anesthesia.86 When injected into
a vein, it inflames the potassium ions in the sensory nerve fibers, literally burning up the
veins as it travels to the heart.87 Potassium chloride is so painful that the American
Veterinary Medical Association (AVMA) prohibits its use as the sole agent of
euthanasia—it may only be used after the animal has been properly anesthetized.88
There are less painful drugs that will cause death. For example, experts have suggested
pentobarbital, which can be administered in a single injection. Indeed, this is the most
common method of euthanizing domesticated animals.89 In Oregon, which has legalized
physician-assisted suicide for the terminally ill, state doctors prescribe an overdose of
barbiturates like pentobarbital for their dying patients. The state’s medical ethics board
determined that an overdose from a long-acting barbiturate was the most humane way to
help someone die—it is painless, effective, and does not require the presence of a doctor

commissioner at the time, Jack Terhune, sought an amendment to New Jersey’s lethal injection statute to allow
the commissioner to choose better drugs if they came along. “[We wanted] a generic statement, like ‘drugs to
be determined and identified by the commissioner, or the attorney general, or the Department of Health’. Who
knew what the future was going to bring?” The proposed amendment did not pass, and the statue remains the
same as it was when passed in 1983. “New Jersey's Waltz with Death,” New Jersey Law Journal, November
25, 2002, http://venus.soci.niu.edu/~archives/ABOLISH/rick-halperin/feb03/0677.html (retrieved April 4, 2006).
85

Dershwitz Testimony, p. 19.

86

See Carol Benfell, “Routine but deadly drug: Potassium Chloride has Jekyll and Hyde personality,” Santa
Rosa Press Democrat, March 23, 1997, http://www.iatrogenic.org/potchlor.html (retrieved March 13, 2006);
“America’s Riskiest Drugs: Potassium Chloride,” February, 24, 2003,
http://www.forbes.com/2003/02/24/cx_mh_0224potassium.html (retrieved March 13, 2006). Diana Wiley,
“Mistakes that Kill,” Maclean’s, August 31, 2001 (including a case where a woman witnessed her son’s death
when he accidentally received a dose of potassium chloride. She recounts his reactions to the drug: “Please
stop,” he cried out. “You’re hurting me, it’s burning, it’s making me dizzy.”).
87

Dershwitz Testimony, p. 39-40 (“If potassium chloride is given to an awake individual, in other words, before
thiopental, before the heart stops, it would be quite painful because it’s very irritating for blood vessels.”).

88

2000 Report of the AVMA Panel on Euthanasia, 218 J. A.V.M.A., 680-681 (2001),
http://www.avma.org/issues/animal_welfare/euthanasia.pdf (retrieved April 2, 2006) (2000 Report of the AVMA
Panel on Euthanasia) (“Administration of potassium chloride intravenously requires animals to be in a surgical
plane of anesthesia characterized by loss of consciousness, loss of reflex muscle response, and loss of
response to noxious stimuli.”). See also Affidavit of Dr. Kevin Concannan, D.V.M., D.A.C.V.A., Page, et al. v.
Beck, et al., Case No. 5:04-CT-04-BO, August 31, 2005, p. 4 (“Potassium chloride is unacceptable in
euthanasia protocols that fail to provide for the presence of properly trained veterinary personnel to induce
proper anesthesia, assess the physical signs indicating the veterinary patient’s state of consciousness, and
maintain an unconscious state throughout the euthanasia process.”).

89

Dr. T.J. Dunn, Jr., "Euthanasia: What to Expect," http://www.thepetcenter.com/imtop/euthanasia.htm
(retrieved April 14, 2006).

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at the time of ingestion in pill form.90 According to a physician who consulted with
Oregon legislators before the passage of the physician-assisted suicide bill in 1994, an
overdose from a drug like pentobarbital is “the best death one could give someone who
is suffering.”91
Medical experts have also recommended one lethal dosage of sodium thiopental without
following it with other drugs. A single injection of this drug “has all the advantages and
none of the disadvantages that other drugs manifest [which are] difficult, cumbersome,
[and] amateurish to utilize.”92
Dr. Mark Dershwitz is a professor of anesthesiology who has been an expert witness on
behalf of several states, defending their lethal injection protocols against constitutional
challenges.93 Dershwitz told Human Rights Watch that state officials have asked him
about drugs other than potassium chloride that they could use to induce cardiac arrest in
a condemned inmate. He said they have asked specifically about “the vet option,”
meaning the use of pentobarbital. Dershwitz recounted for Human Rights Watch how
he explained to the officials the difference between the pharmacological effects of
pentobarbital and potassium chloride:
The pharmacological effect of potassium chloride kills an inmate, and it
happens quickly. If one uses just a large does of barbiturate, circulation
will stop, the inmate will die, but it won’t happen in two minutes.
Electrical activity in the heart may persist for a very long time, in healthy
people almost certainly for more than a half an hour. Everyone involved
will have to wait a very long time for the heart to stop.94
According to Dershwitz, no state corrections official whom he has told about the
increased length of time pentobarbital may take to kill a condemned inmate has pursued

90

See Oregon Department of Human Services, “Physician Assisted Suicide,”
http://www.oregon.gov/DHS/ph/pas/ors.shtml (retrieved March 1, 2006). Also, Human Rights Watch telephone
interview with a physician who consulted with the state legislator and served on the state medical ethics board
(and asked to remain anonymous due to the sensitivity of the issue in Oregon), Portland, Oregon, March 6,
2006.

91

Interview with an Oregon physician.

92

From an advisory paper submitted to the NJDOC from a group of New York nurses in 1983, cited in "New
Jersey's Waltz with Death." The NJDOC did not follow the nurses' advice. "New Jersey's Waltz with Death."
The DOC received a document from a New York nurses in 1983.

93

The states for which Dershwitz has testified include Kentucky, Maryland, Missouri, and Virginia. E-mail
correspondence to Human Rights Watch from Dershwitz, March 22, 2006.

94

Interview with Dershwitz.

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using it instead of potassium chloride, even though pentobarbital is less painful. Human
Rights Watch asked Dershwitz to explain why he thought corrections officials would risk
using a painful drug like potassium chloride rather than a safer drug like pentobarbital;
he said:
It’s not about the prisoner. It’s about public policy. It’s about the
audience and prison personnel who have to carry out the execution. It
would be hard for everybody to have to sit and wait for the EKG
activity to cease so they can declare the prisoner dead.95

Pancuronium Bromide
Pancuronium bromide, commonly known by its brand name Pavulon, is a
neuromuscular blocking agent that paralyzes all of a body’s voluntary muscles, including
the lungs and diaphragm.96 Given enough time to act, Pavulon will cause death by
asphyxiation. It does not affect consciousness, however. Nor does it affect experience of
pain. Without proper anesthesia, anyone given Pavulon will feel himself suffocating, but,
because the pancuronium bromide prevents any movement, speech, or facial expression,
he will be unable to reveal that he is suffering.97 If the prisoner is still conscious when
the potassium chloride is injected, the Pavulon will also prevent him from conveying to
the executioners or the witnesses that he is experiencing pain.98
When a patient is awake during surgery and able to recall the experience afterward, the
condition is called “intraoperative awareness.”99 The problem is so serious that in 2005
the American Society of Anesthesiologists issued a “Practice Advisory.” The advisory
notes that certain conditions may increase the risk of someone experiencing

95

Ibid.

96

Randall C. Baselt, Ph.D., Disposition of Toxic Drugs and Chemicals in Man, Seventh Ed., (Foster City, CA:
Biomedical Publications, 2004).

97

Ibid.

98

Dershwitz Testimony, p. 75 (“Counsel: Would the injection of Pavulon impede the Warden’s ability to be able
to say whether he sees any reaction or not on the inmate’s part to the drugs? Dr. Dershwitz: Well yes. For
instance, if the pancuronium was the first drug given and the person were conscious when experiencing
paralysis, they would have no motor or mechanical way of communicating their displeasure.”).

99

According to the Joint Commission International Center for Patient Safety, “Anesthesia awareness, also
called unintended intraoperative awareness, occurs under general anesthesia when a patient becomes
cognizant of some or all events during surgery or a procedure and has direct recall of those events. Because of
the routine use of neuromuscular blocking agents (also called paralytics) during general anesthesia, the patient
is often unable to communicate with the surgical team if this occurs.” American Society of Anesthesiologists,
“Practice Advisory for Intraoperative Awareness and Brain Monitoring: A Report by the American Society of
Anesthesiologist Task Force on Intraoperative Awareness,” Case 5:06-cv-00219-JF, February 14, 2005 (copy
on file with Human Rights Watch), p. 3 (ASA Advisory).

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intraoperative awareness, including when the anesthesia is administered intravenously (as
it is in lethal injection executions) or when the person receiving anesthesia has a history
of substance abuse—often frequent with prisoners.100 Surgery patients who have been
administered Pavulon or other neuromuscular blocking agents with inadequate
anesthesia have reported terrifying and torturous experiences where they were alert,
experiencing pain, and yet utterly unable to signal their suffering.101 A woman who was
awake but paralyzed by a neuromuscular agent during her eye surgery explained her
efforts to make the surgeon aware she was conscious: “I was fighting to move with every
ounce of energy I had . . . and there was no acknowledgment from the
anesthesiologist.”102 Once she realized that she could not convey to the doctors that she
was awake, she felt: “I would rather die than stay like this . . . I just don’t want to be
alive. I can’t—I can’t stay alive through this. I—I just can’t do it.”103
The danger of masked suffering because of neuromuscular blocking agents like
pancuronium bromide is so great that at least thirty states have banned by statute the use
of such drugs in the euthanasia of animals.104 It is noteworthy that the AVMA has said
that, “[a] combination of pentobarbital with a neuromuscular blocking agent is not an
acceptable euthanasia agent” for animals, because of the concern about controlling the
proper onset and timing of anesthetic agents and paralytic agents.105 In other words,
state corrections officials have settled on a protocol and procedure to kill their

100

ASA Advisory, p. 8.

101

For instance, Jeanette Liska, author of Silenced Screams, describes her 1990 experience of lying paralyzed
and awake on the operating table with no way of communicating her awareness to the doctors and nurses in
the room: “Drowning in an ocean of searing agony, I sensed the skein of my entire life unraveling, thread by
thread. But I was the only one who heard my tortured screams—silent screams that reverberated again and
again off the cold walls of my skull.” Jeanette Liska, Silenced Screams; Surviving Anesthetic Awareness During
Surgery: a True-Life Account (Council for Public Interest in Anesthesia and American Association of Nurse
Anesthetists, September 2002).
102

Testimony of Carol Weihrer, Special Hearing, Code v. Cain, Case No. 138,860-A, February 13, 2003, p. 1617 (Weiherer Testimony). Weihrer is the founder and president of Anesthesia Awareness,
http://www.anesthesiaawareness.com/ (retrieved March 25, 2006).
103

Weihrer Testimony, p. 18.

104

See Alabama Code 34-29-131; Alaska Statute 08.02.050; Arizona Revised Statute Annotated 11-1021;
California Business and Professional Code 4827; Colorado Review Statute 18-9-201; Connecticut General
Statute 22-344a; Delaware Code Annotated Title 3, Section 8001; See Florida Statute 828.065; Georgia Code
Annotated 4-11-5.1; 510 Illinois Comp. Statute 70/2.09; Kansas Statute Annotated 47-1718(a); Louisiana
Revised Statutes Annotated 3:2465; Massachusetts General Laws Chapter 140 Section 151A; Michigan Comp.
Laws 333.7333; Missouri Revised Statute 578.005(7); Nebraska Revised Statutes 54-2503; Nevada Revised
Statutes Annotated 638.005; New Jersey Statute Annotated 4:22-19.3; New York. Agriculture and Markets Law
374; Ohio Revised Code Annotated 4729.532; Oklahoma Statute Title 4 Section 501; Oregon Revised Statute
686.040(6); Rhode Island General Laws 4-1-34; South Carolina Code Annotated 47-3-420; Tennessee Code
Annotated 44-17-303; Texas Health and Safety Code Annotated 821.052(a); West Virginia Code 30-10A-8;
Wyoming Statute Annotated 33-30-216.
105

2000 Report of the AVMA Panel on Euthanasia.

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condemned inmates that is considered too risky and dangerous for the euthanasia of
dogs and cats.
At least some wardens are aware of the danger that an inmate may be conscious during
his execution but unable to convey his pain. For example, the North Carolina warden
who oversees that state’s executions has stated: “I know there were some concerns
raised that the way we were using the drugs at that time could possibly cause an inmate
to become conscious during an execution.”106
In the three-drug sequence, the neuromuscular blocking agent such as Pavulon is not
necessary to ensure the prisoner’s death nor does it reduce any suffering he may feel.
Confronting a record devoid of justification for the use of Pavulon, the Tennessee
Supreme Court concluded its use is “unnecessary and the state has no reason for using
such a ‘psychologically horrific’ drug to execute [a condemned inmate]… If Pavulon
were eliminated from the … lethal injection method, it would not decrease the efficacy
or the humaneness of the procedure.”107 Asked why he included a paralytic agent in
Oklahoma’s statute, Chapman told Human Rights Watch: “What’s the problem? We
could have a five or six drug protocol, I don’t care. I called for the use of a barbiturate
and a paralytic agent just because it’s better to have two things that could kill a prisoner
than one.”108
Pancuronium bromide does serve a purpose, however. It places a “chemical veil”
between the condemned prisoner and the execution team and witnesses.109 According to
106

Deposition of Deputy Warden Marvin Polk, Page, et al. v. Beck, et al., September 8, 2005, p. 15 (Polk
Deposition).
107

Abdur’Rahmnan v. Bredesen, at al., SC of TN, No. M2003-01767-SC-R11-CV, October 17, 2005, p. 89a.
The Court also found that: “The method could be updated with second or third generation drugs to, for example,
streamline the number of injections administered. Moreover, the state’s use of Pavulon, a drug outlawed in
Tennessee for euthanasia of pets, is arbitrary. The State failed to demonstrate any need whatsoever for the
injection of Pavulon.” Ibid., p. 77a. Nonetheless, the court found against the condemned inmate, citing a lack of
any visible evidence that any Tennessee inmates had ever been conscious during their executions. This is
exactly the kind of proof that the use of Pavulon would mask. Ibid., p. 89-92.
108

Interview with Chapman.

109

The phrase “chemical veil” may have first been used in the lethal injection context by Dr. Mark Heath in
2001, in a series of speeches he gave around the United States. Human Rights Watch telephone interview with
Dr. Mark Heath, assistant professor of clinical anesthesiology at Columbia University, New York, New York,
April 9, 2006. Heath is a leading researcher on how lethal injections are administered in the United States.
Heath also serves as an expert witness on behalf of prisoners challenging state lethal injection protocols in
court. See also, Anderson et al v. Evans et. al., (case number was not yet assigned), Petitioner’s Complaint,
July 13, 2005, p. 9. The American Civil Liberties Union (ACLU) of Northern California has filed a lawsuit on
behalf of Pacific News Services seeking a permanent injunction to prevent the California Department of
Corrections and San Quentin Prison from using the paralytic drug pancuronium bromide during executions,
arguing that it violates the First Amendment rights of execution witnesses. Complaint for Declaratory and
Injunctive Relief [42 United States Code Section 1983], (case number not yet assigned), March 8, 2006,

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Dershwitz, “The pancuronium will prevent motor manifestations of physiological
processes that could be perceived by witnesses as unpleasant or suffering on the part of
the inmate.”110 When the potassium chloride induces cardiac arrest, it also deprives a
condemned inmate’s brain of oxygen, which may cause an “involuntary jerking of the
arm and leg muscles … a lay witness in the audience may misperceive that … as
something akin to suffering. And so the pancuronium would prevent the motor
manifestation of that procedure … so in my mind, the pancuronium does serve a useful
purpose.”111
In short, pancuronium bromide contributes to the appearance of a peaceful-looking
execution. It reassures onlookers—and the public—that all is well, regardless of what the
prisoner is actually experiencing.

Sodium Thiopental
If condemned inmates are to be spared the intense suffering of conscious suffocation
from pancuronium bromide, and the excruciating pain of potassium chloride burning
through their veins, it is essential that they be properly anesthetized first. Sodium
thiopental is the anesthetic administered at the start of the lethal injection execution to
render the inmate unconscious before the other two drugs are injected.112 State
protocols generally call for between 1200 to 5000 milligrams of sodium thiopental,113
amounts that far exceed dosages used in surgery.114 If properly administered into the
condemned inmate’s bloodstream, the amount of the drug specified in most protocols
would be more than sufficient to cause unconsciousness and, eventually, death.115 The
prisoner would stop breathing on his own within a minute or two of the chemical

http://www.aclunc.org/privacy/060308-chemical_curtain.pdf (retrieved April 4, 2006). ACLU cooperating attorney
John Streeter said: “The drug effectively creates a chemical curtain that hides what really goes on in the death
chamber. In the name of freedom of the press, we are demanding that the State take that curtain down.” ACLU
of Northern California, Press Release, March 8, 2006, http://www.aclunc.org/pressrel/060308lethal_injection.html (retrieved April 4, 2006).
110

Dershwitz Testimony, p. 27.

111

Ibid., p. 27-28.

112

See, e.g., Affidavit of Oklahoma Warden Mike Mullin, July 5, 2005 (copy on file with Human Rights Watch)
(describing Oklahoma’s lethal injection procedures).
113

Florida’s execution protocol calls for “no less than 2000 mg per syringe [of each drug].” Florida Corrections
Commission, “Execution Methods Used by States,” http://www.fcc.state.fl.us/fcc/reports/methods/emcont.html
(retrieved March 31, 2006); North Carolina’s execution protocol calls for “no less than 3000 mg of sodium
thiopental.” North Carolina Department of Correction, “Execution Method,”
http://www.doc.state.nc.us/dop/deathpenalty/method.htm (retrieved at April 4, 2006).
114

Interview with Heath, March 7, 2006.

115

Ibid.

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entering his veins.116 However, as discussed in Chapter Three below, methods for the
administration of anesthesia in lethal injection executions do not guarantee that the
condemned inmate will be properly anesthetized.

The Failure to Review Protocols
The three-drug sequence used today in lethal injections was developed almost three
decades ago and then, over the following two decades, was adopted by all but one of the
death penalty states.117 Despite the passage of time, and medical advances, states have
not changed this three-drug sequence. As the Tennessee Supreme Court acknowledged
in 2005, while the “state of the art” of pharmacology has changed in the last thirty years,
the chemical agents Tennessee uses to execute their prisoners have not.118 Chapman
chose the specific drugs to be used in Oklahoma’s prototype lethal injection protocol
based on what was widely used in medical surgeries at the time. He explained to Human
Rights Watch that “at the time, I could not have seen that chemical agents used to
induce anesthesia would change so markedly. . . . Today, I would have just not been so
specific in my drug language in the protocols, so that corrections officials could use the
best agents of their time.”119
Over the years, states have tinkered with certain relatively insignificant aspects of their
death penalty procedures, for example, addressing how an inmate is brought into the
execution chamber,120 whether to pay their executioners in cash or by check,121 how to
accommodate media access,122 what type of catheter to use,123 and what time of day the
execution will take place.124 But they have left intact the three-drug protocol and the
basic process of administration (described in Chapter Three).
There are a few exceptions. In the mid-1990s, New Jersey corrections officials, in
anticipation of the state’s first lethal injection execution, reviewed its lethal injection
116

Ibid.

117

E-mail correspondence to Human Rights Watch from Denno, March 29, 2006.

118

Petitioner’s Brief, Abdur’Rahman v. Bredesen, February 15, 2006, p. 77a.

119

Interview with Chapman.

120

Polk Deposition.

121

”New Jersey’s Waltz with Death.”

122

See “Minutes,” Robert Glen Coe Execution After Action Assessment, April 27, 2000 (copy on file with Human
Rights Watch).
123

E-mail correspondence to Human Rights Watch from Reginald Wilkinson, secretary, Ohio Department of
Corrections, April 2, 2006.
124

Human Rights Watch telephone interview with Reverend Carroll Pickett, former death house chaplain in
Texas, March 8, 2006 (Pickett notes that executions used to take place at midnight in Texas, but now take
place around 6 p.m.).

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protocols. “Because the state of the art is changing daily,”125 corrections officials
unsuccessfully sought an amendment to the state statute to delete reference to specific
lethal agents.126 In Pennsylvania, taking note of growing concerns about lethal
injections, the Department of Corrections recently retained an outside consultant to
review the state’s lethal injection procedures. Jeffrey Beard, secretary of the Pennsylvania
Department of Corrections, told Human Rights Watch that one of the options under
consideration is the use of a brain monitor to assess the effect of the anesthesia before
the other two drugs are administered.127 Robert Myers, general counsel of the Arizona
Department of Corrections, also told Human Rights Watch that the Department has
recently decided to undertake a review of its lethal injection procedures.128 Human
Rights Watch is not aware of other states that have voluntarily, i.e. outside the context of
litigation, taken steps to review their lethal injection protocols. Even when prisoners
have challenged their states’ lethal injection protocols, public officials have resisted
considering whether there are better options. In prior and ongoing litigation, states have
not offered to change their drug protocols or methods of administration.

125

Statement of Ronald Bollheimer, supervisor of legal and legislative affairs for New Jersey Department of
Corrections, NJDOC public hearings transcript, February 4, 2005, p. 33 (copy on file with Human Rights
Watch).
126

“Memorandum” to Howard L. Beyer, assistant commissioner, Division of Operations, Department of
Corrections, from Annie C. Paskow, assistant attorney general, chief, Appellate Bureau, July 28, 1998 (copy on
file with Human Rights Watch). The legislature did not pass the amendment.
127

Interview with Beard.

128

Human Rights Watch telephone interview with Robert Myers, general counsel, Arizona Department of
Corrections, March 29, 2006.

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III. Lethal Injection Procedures
You guys doing that right?
—Stanley “Tookie” Williams, at his December 14, 2005 execution, to a medical
technician who, sweating and pale, spent eleven minutes probing Williams’s arm before
she successfully established an intravenous line129
The key to any claim that the standard three-drug lethal injection execution is not cruel is
that the anesthesia renders the inmate unconscious and unable to feel pain before the
other drugs are administered. Yet corrections officials do not ensure the anesthesia is
effectively administered. During surgery, a trained anesthesiologist remains at the
patient’s side to determine whether the patient has reached the proper level of
unconsciousness before the surgery proceeds, and to ensure the patient remains
unconscious for the duration of the procedure.130 For reasons that remain unclear,
however, state corrections agencies have not incorporated into their lethal injection
executions the same safeguards that accompany the administration of anesthesia in
medical procedures. State lethal injection protocols do not require execution teams to
include persons trained in administering anesthesia, do not permit personnel to be close
enough to the condemned inmate to monitor the administration of the anesthesia, and
do not use trained personnel to determine whether the condemned inmate is properly
anesthetized before the other two drugs are injected.
The basic procedure states use in lethal injection executions is as follows:131 The
condemned prisoner is brought to the execution chamber and strapped to a gurney.
Some states allow the witnesses to watch the executioner(s) insert the catheter into the
prisoner’s arm.132 Other states draw a curtain over the windows behind which the
witnesses sit so they do not see the execution team insert the catheter into the

129

Human Rights Watch telephone interview with Kevin Fagan, San Francisco Chronicle reporter and media
witness to the execution of Stanley Tookie Williams, February 22, 2006. See also, Kevin Fagan, “The Execution
of Stanley Tookie Williams Eyewitness: Prisoner Did Not Die Meekly, Quietly,” San Francisco Chronicle,
http://www.sfgate.com/cgibin/article.cgi?f=/c/a/2005/12/14/MNG05G7QMA1.DTL&hw=Stanley+Tookie+Williams&sn=003&sc=808
(retrieved April 4, 2006).
130

See American Society of Anesthesiologists, “Standards for Basic Anesthetic Monitoring,” amended October
25, 2005, http://www.asaq.org/publicationsAndServices/standards/02.pdf (retrieved March 22, 2006).
131

See, .e.g., “San Quentin Operational Procedure No. 770, Lethal Injection Chamber,” redacted, revised March
6, 2006, p. 33-35 (copy on file with Human Rights Watch). Individual state procedures may have minor
variations.
132

Interview with Fagan. See also Affidavit of Mike Mullin.

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condemned inmate.133 The catheter is hooked up to an intravenous line that extends for
at least several feet into the room where the execution team administers the injections.
That room or space may or may not have a one-way mirror so that the executioners can
look out at the prisoner without being seen. If the curtains were closed, they are opened.
Witnesses see the prisoner alone in the chamber, already hooked up to the intravenous
(IV) lines. The execution team, which consists of one or more people, will have prepared
syringes with the drugs and syringes with saline solution used to flush the lines in
between each drug. Upon a signal from the warden, the team begins injecting the
syringes into the IV lines, one after another, in the prescribed sequence, without a break.
Some states use a more complicated procedure. For example, in Oklahoma, catheters are
inserted into both arms.134 Three executioners plunge eleven syringes in a complicated
sequence, alternating the drugs between the left and right arms. It is not known who, if
anyone, directs the sequence of drug administration for the executioners. The process is
then repeated by injecting a second round of drugs. By the end of the process, the
prisoner should have received two doses of sodium thiopental through the left arm, two
doses of pancuronium bromide through the right arm, and two doses of potassium
chloride (one dose through each arm).
Oklahoma’s current method of administering the lethal drugs differs from that originally
developed by Chapman. The protocol Chapman developed called for a continuous
infusion of sodium thiopental and did not split the drugs between the two arms. His
protocol also called for observation of the IV site. These protections no longer exist in
the current Oklahoma protocol. It is not clear whether Oklahoma ever executed its
inmates using Chapman’s protocol, or when and why the changes where made.135 When
Human Rights Watch asked Chapman if he had concerns about the ways states today
were administering lethal injection executions, he noted, “The question [of the drugs]
being administered properly, that never came up in my mind. I never knew we would
have complete idiots injecting these drugs. Which we seem to have.”136

133

See, “Murderer of Three Women in Texas is Executed in Texas,” New York Times, March 14, 1985, p. 9. In
2004, the Ohio Department of Corrections changed the location of the insertion of the catheter from the
execution chamber to the holding cell. The prisoner enters the execution chamber with the catheter already
inserted. Email correspondence from Reginald Wilkinson.
134

Affidavit of Mike Mullin.

135

E-mail correspondence to Human Rights Watch from Lisa McCalmont, April 10, 2006.

136

Interview with Chapman.

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Missouri is the only state known to use a femoral venous IV, in which the IV is inserted
into the femoral vein in the groin area.137 A small needle is used to inject a local
anesthetic. A larger needle is inserted into the femoral vein, and, once blood is obtained,
a wire is threaded through the needle into the vein, and the needle is withdrawn. Then
the IV catheter is threaded over the wire and into the vein. The catheter is then secured
by suture. Little is publicly known about the training and expertise of the execution
personnel who perform Missouri’s complicated femoral IV access executions. While the
limited public record indicates that a surgeon creates the IV access, it is unclear what
their role is in the conduct of the execution.138 The attempts by condemned prisoners to
discover the information through litigation have been rebuffed by the state’s refusal to
answer questions posed in the plaintiff’s depositions and interrogatories.139

Qualifications of Execution Team
Most lethal injection protocols say little or nothing at all about the training, credentials,
or experience required of persons who will be on the execution team, either the person
who inserts the catheter or the persons responsible for injecting and monitoring the
drugs. No state lethal injection protocol expressly requires the team to include an
anesthesiologist or someone with training in anesthesiology.
Twelve state lethal injection protocols contain no reference at all to the qualifications of
the executioners.140 Eight protocols refer generally to “training,” “competency,”

137

See Testimony of Dr. Mark Dershwitz, Transcript, Taylor v. Crawford, 05-4173-CV-S-FJG, January 30, 2006,
http://www.mhb.com/profiles/ford/cases/PDF%20Docs/ConsultLethal%20Injection/Taylor%20(Missouri)/01302006%201600%20Transcript%20of%20Snap%20Hearing%20w
%20Drs%20Dershowitz%20&%20Groner.pdf (retrieved March 22, 2006). A Kentucky Circuit Court recently
found that jugular vein catheterization violates the Eight Amendment, Baze v. Rees, No. 04-CI-01094, slip
opinion, p. 11-12 (Kentucky Circuit Court, July 8, 2005).
138

Brief of Appellant-Plaintiff, Taylor v. Crawford, et al., No. 06-1397, February 24, 2006, p. 33-34. See also
Defendant Crawford’s Answers to Plaintiff’s First Interrogatory, Taylor v. Crawford, Case No. 05-4173-CV-CSOW, September 12, 2005, p. 14-15.
139

Ibid.

140

Arizona: “Arizona State Prison Complex—Florence, Execution Information” (copy on file with Human Rights
Watch); Arkansas: “Arkansas Department of Corrections Procedure for Execution,” (copy on file with Human
Rights Watch); Delaware: Department of Corrections Execution Information, e-mail correspondence with
Denno, April 5, 2006; Idaho: “Execution Procedures,” Idaho Department of Corrections Policy and Procedures
Manual, Section 135, January 2004, p. 4 (copy on file with Human Rights Watch); Indiana: “Summary of
Execution Procedures in the State of Indiana,” Indianoplis Star,
http://www2.indystar.com/library/factfiles/crime/capital_punishment/deathrow.html#history (retrieved April 6
2006); Kansas: Kansas Department of Corrections LCF General Order 10,120, February 5, 2001 (copy on file
with Human Rights Watch), confirmed current in Human Rights Watch telephone interview with Francis Breyne,
public information officer, Kansas Department of Corrections, March 30, 2006; Maryland: Department of
Corrections Execution Information, e-mail correspondence with Denno, April 5, 2006; Mississippi: e-mail
correspondence with Denno, April 5, 2006 (confirming they mention only “executioners” in their protocol); New
Mexico: Penitentiary of New Mexico Policy #073400, revised May 30, 2001 (copy on file with Human Rights

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“preparation,” or “practice,” but they do not elaborate further.141 For example, North
Carolina’s protocol states: “Appropriately trained personnel enter behind the curtain.”
But it does not explain what would constitute appropriate training.142 According to
Texas’s protocol, “a medically trained individual (not to be identified) shall insert an
intravenous catheter into the condemned inmate’s arms.”143 The frequent problems
Texas executioners have had with the insertion of catheters certainly raises questions
about the actual training of the individuals who insert the catheter. (See Chapter Six on
“Botched Executions” for descriptions of such problems.) Texas’s protocol does not
refer to the qualifications of any other participants in the execution. California’s protocol
states: “The angiocath shall be inserted into a usable vein by a person qualified, trained,
or otherwise authorized by law to initiate such a procedure.”144 Again, like Texas, there is
no reference to qualifications of other members of the execution team. Similarly,
Florida’s protocol does not refer to the qualifications of the execution team members.
Florida does require the presence of a doctor and a physician’s assistant in the room, but
their role in the execution is not clear.145 What is known is that Florida pays its
executioner, described only as a “private citizen,” $150 for each execution. Florida
recruits its executioners by advertising in local newspapers.146

Watch); South Carolina: Department of Corrections Lethal Injection Information, e-mail correspondence with
Denno, April 5, 2006; Virginia: Brief for Amicus Curiae of Darikk DeMorris Walker in support of Petitioner, Hill v.
McDonough, et al., March 6, 2006,
http://www.law.berkeley.edu/clinics/dpclinic/pdf/Hill/2006.03.06%20amicus%20walker.pdf (retrieved April 5,
2006); Washington: Washington Department of Corrections, “Capital Punishment,” Department of Corrections
Policy, No. 490.200 and 760.001, April 25, 2001 (copy on file with Human Rights Watch).
141

California: San Quentin Procedure No. 770, revised March 8, 2006 (copy on file with Human Rights Watch);
Colorado: Colorado Department of Corrections Administrative Regulation No. 300-14, August 1, 2005,
http://www.doc.state.co.us/admin_reg/PDFs/0300_14.pdf (retrieved April 5, 2006) (“thoroughly trained
execution team”); Connecticut: State of Connecticut Department of Corrections Directive No. 6.15, October 19,
2004, http://www.ct.gov/doc/lib/doc/pdf/ad/ad0615.pdf (retrieved April 5, 2006) (“appropriately trained and
qualified”); Illinois: e-mail correspondence to Human Rights Watch from Deborah Denno, April 5, 2006 (“a
trained person shall insert the catheter”); Montana: Montana Department of Corrections Policy No. Doc. 3.6.1,
http://cor.mt.gov/resources/POL/3-6-1.pdf (retrieved April 5, 2006) (“trained execution team”); New York: New
York State Department of Corrections, “Procedures for the Operation of the Capital Punishment Unit Green
Haven Correctional Facility,” Section V, points. A-C, p. 7, August 3, 2001 (copy on file with Human Rights
Watch) (“qualified individuals proficient in starting and administering IV fluids”); North Carolina: North Carolina
Department of Correction, “Execution Method,” http://www.doc.state.nc.us/dop/deathpenalty/method.htm
(retrieved April 5, 2006) (“appropriately trained personnel”); Oklahoma: Affidavit of Mike Mullin (“trained
personnel”); Oregon: e-mail correspondence with Denno, April, 5, 2006 (“medically trained individual”).
142

North Carolina Department of Correction, “Execution Method.”

143

Texas Department of Criminal Justice Institutional Division, Public Information Office, “Execution Procedures
of Inmates Sentenced to Death,” April 23, 2001, p. 2 (copy on file with Human Rights Watch).
144

San Quentin Operational Procedure No. 770, p. 39.

145

Sims v. State, 754 So.2d 657, 666 n. 17.

146

Associated Press, “Sims dies by lethal injection; switching from electrocution,” Florida Times Union,
February 23, 2000. See also, Florida Corrections Commission, “Execution Methods Used by States.”

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Even though not expressly included in their protocols, a number of states have disclosed
the qualifications of at least some of their execution personnel. In Pennsylvania,
Colorado, and Georgia, for example, the corrections departments use trained Emergency
Medical Technicians (EMTs) to insert the catheter.147 Ohio uses an EMT and a
phlebotomist to start the IVs, and an EMT administers the medication.148 Tennessee
uses two paramedics to insert the IVs.149 Oklahoma uses a phlebotomist to insert the
IVs.150
Emergency Medical Technicians may be trained to insert catheters, but they are not
ordinarily trained in the intravenous administration of anesthesia. Indeed, they may not
even have a basic knowledge of the nature of the drugs they will administer. For
example, Louisiana EMTs who administer the drugs during lethal injection executions
have revealed they knew nothing about the drugs used in the procedure, including the
anesthetic.151 The warden of Louisiana’s State Penitentiary, who is responsible for
ensuring that the EMTs involved in Louisiana’s execution are qualified to perform lethal
injection executions, recently stated that he has “no clue” as to whether the EMTs on his
lethal injection execution team have been trained in intravenous administration of
anesthesia.152 North Carolina’s Secretary of the Department of Corrections has
acknowledged that he is ultimately responsible for his state’s lethal injection
executions.153 Yet when asked about the medical qualifications of the execution team, he
stated: “I don’t know what—I would assume a nurse at least or someone else who is
certified to insert a needle.”154
147

Interview with Beard. Interview with Atherton. In Colorado, the Emergency Medical Technicians (EMTs) are
full-time, non-medical correctional officers at the corrections department who work part-time as EMTs in the
community. Georgia’s use of EMTs is mentioned in: Georgia Department of Corrections Report on the History
of Georgia’s Death Penalty, http://www.dcor.stat.ga.us/pdf/TheDeathPenaltyinGeorgia.pdf (retrieved April 5,
2006).
148

E-mail correspondence from Reginald Wilkinson.

149

Petitioner’s Brief, Abdur’Rahman v. Bredesen, et al., February 15, 2006, p. 2.

150

Affidavit of Mike Mullin.

151

The ignorance of the executioners in Louisiana was vividly displayed at a special hearing. Special Hearing,
Code v. Cain, Case. No. 138,860A, September 16, 2003, excerpt testimony from anonymous trial witnesses:
excerpt from John Doe #1, leader of the IV team, p. 15-16; excerpt from John Doe #2, assistant on IV team, p.
16; excerpt from John Doe #4, assistant on IV team, p. 17-18. For example, in response to a question about the
effect of sodium thiopental, John Doe #1, the leader of the IV execution team responded, “I read the literature
that came with the product when we got it for the lethal injections. That’s been 12 years ago. I have no idea.”
The attorney for the defendant asked: “So to summarize, would you say that it’s correct that you have not had a
lot of training about the pharmacology of barbiturates or sodium pentothal; is that right? A: Read the literature
and went over it with the pharmacist and talked to our medical director about it. Q: What do you recall from
those conversations? A: Nothing.” Ibid.
152

Testimony of Warden Richard Peabody, Code v. Cain, p. 108.

153

Testimony of North Carolina Department of Corrections Secretary Theodis Beck, Page, et al. v. Beck, et al.,
Case No. 5:04-CT-04-BO, August 31, 2005, p. 80.
154

Ibid., p. 99.

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The absence of appropriate medical training extends to something as basic as strapping
the prisoner correctly. If the straps used to secure an inmate to the gurney are
improperly secured, they can stop the delivery of the drug from the intravenous site in
the prisoner’s arm to the prisoner’s brain.155 A member of Louisiana’s execution strapdown team acknowledged he had never received any training from medical personnel
about how to fasten the straps without restricting the prisoner’s circulation.156 One of
the botched executions in Chapter Six, below, exemplifies the problem of too-tight
straps.

Checking the IV Equipment
Because problems in drug delivery systems and equipment malfunction can lead to the
ineffective administration of anesthesia, the American Society of Anesthesiologists
(ASA) emphasizes the importance of having medical personnel check the functioning of
the anesthesia delivery system every time it is going to be used.157 The ASA stresses the
importance of having a checklist protocol for the anesthesia machines and equipment, to
assure that the desired doses of anesthetic drugs will be delivered.158 We do not know
how many states check their intravenous equipment before using it for executions, nor
do we know the qualifications of the persons who do the checking. A warden in North
Carolina admitted that, while his execution teams do have a checklist protocol, it is “not
used or practiced. I don’t know the last time [it] was actually used.”159
The nature of the set up in execution chambers also increases the possibility of problems
with the equipment. All the lethal injection drugs are administered from behind a screen
or wall several yards away from the prisoner. The length of the intravenous tubing itself
is thus problematic, because it requires multiple IV extension sets and connectors,
increasing the risk of kinks and leaks.160
The ASA (in its Practice Advisory) underscores the importance of having an
anesthesiologist near the patient to in order to verify that the intravenous access
equipment, including its infusion pumps and connections, are properly functioning and

155

Interview with Heath, March 6, 2006.

156

Testimony of Johnny Butler, former member of a Louisiana State Penitentiary Execution Team, Special
Hearing, Code v. Cain, No. 138,860-A, February 10, 2003, p. 76.
157

ASA Advisory, p. 9.

158

Ibid., p. 10.

159

Testimony of Warden Richard Polk, Page, et al. v. Beck, et al., Case No. 5:04-CT-04-BO, August 31, 2005,
p. 114.
160

Declaration of Dr. Mark Heath, Affidavit, Morales v. Hickman, January 12, 2006, p. 11-12.

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to visually monitor the flow of the anesthesia into the veins.161 In lethal injection
executions, however, such monitoring is not possible because of the distance of the
execution team from the equipment. For example, because of the distance, the
executioners cannot immediately determine if the anesthesia is leaking into the
surrounding muscle tissue because of an improperly inserted or secured needle.162

Level of Anesthesia Not Monitored
Finally, and most crucially, corrections agencies do not permit anyone to monitor the
prisoner’s level of anesthesia before the second and third drugs are administered.
Standard medical—and even veterinary—practice requires a hands-on determination of
the depth of anesthesia of the patient, or of an animal, before the initiation of any
painful procedures.163 Yet during lethal injection executions there is no one, much less
someone trained in anesthesia, who either ascertains a prisoner’s sedation level before
the next two painful drugs are administered, or who continuously monitors the inmate’s
consciousness levels throughout the execution until the prisoner has died. Similarly,
there is no one who can make necessary adjustments to dosage amounts, should a
problem emerge.164
Many condemned prisoners fall within a category of persons the American Society of
Anesthesiologists has deemed most at risk of experiencing intraoperative awareness
because of a history of past intravenous drug use, obesity, and other factors of poor
health.165 When a paralytic agent such as pancuronium bromide is used in surgery on
such persons, it is especially important that anesthesiologists carefully monitor the
delivery and the patient’s reaction to the anesthesia to ensure the patient is
unconscious.166
The patient’s depth of anesthesia during surgery is typically assessed by a number of
factors, including but not limited to the patient’s motor functions, responses to noxious
stimuli, and reflexive responses.167 The ASA warns that when a neuromuscular blocking
agent is used in combination with anesthesia, it will mask a patient’s response to stimuli,
161

ASA Advisory.

162

Ibid.

163

American Society of Anesthesiologists, “ASA Standards for Basic Anesthesia Monitoring,” revised October
25, 2005, http://www.asahq.org/publicationsAndServices/Standards/02.pdf (retrieved March 31, 2006); 2000
Report of the AVMA Panel on Euthanasia.
164

ASA Advisory, p. 15.

165

Ibid., p. 7-8.

166

Ibid.

167

Ibid., p. 21-23.

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making it harder for a trained anesthesiologist to determine whether he is appropriately
anesthetized or just paralyzed and unable to signal consciousness.168 In such situations,
the anesthesiologist monitors anesthetic depth through “a continuous real-time
assessment of an array of physical signs and monitor signals, which may include the
patient’s heart rate, systolic blood pressure, diastolic blood pressure, EKG waveform,
EEG waveform, pupil size, and anesthetic gas concentrations, which then must all be
related to the intensity of the ongoing surgical stimulation. Such monitoring is part
science and part art, and it takes a considerable amount of hands-on training and
experience.”169 Despite the critical importance of this monitoring to ensuring a pain free
execution, Human Rights Watch is not aware of any state that requires it.
In North Carolina, the warden in charge of overseeing lethal injection executions did not
doubt that prisoners were sufficiently anesthetized when the other drugs were
administered. During a deposition, the warden said he could tell the prisoners were
anesthetized because: “At the time we administer Pavulon, the inmate is snoring deeply.
It is obvious that he’s asleep and unaware . . . In 24 executions, I have never seen one
that did not snore.”170 The deposition continued:
Q: And the snoring is the key for you?
A: Yes.
Q: Is there anything else done to determine the level of unconsciousness
at the time the Pavulon is administered other than to note the snoring?
A: Is there anything else done?
Q: Is there any other procedure used or anything else done to determine
the level of consciousness at the time the Pavulon is administered?
A. No.171
The Secretary of the Pennsylvania Department of Corrections told Human Rights Watch
that during lethal injection executions, the condemned inmate’s head is near the window
through which the executioners can see him. This way, the executioners can see that the
inmate looks asleep when they administer the other two drugs following the

168

Ibid., p. 2.

169

E-mail correspondence to Human Rights Watch from Heath, March 16, 2006.

170

Deposition of Marvin Polk, Page, et al. v. Beck, et al., Case No. 5:04-CT-04-BO, August 31, 2006, p. 39-40.
The warden also said that he asked the condemned prisoner to count backwards; when they stopped counting,
that was how the warden knew the condemned inmate was anesthetized.
171

Ibid., p. 40.

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anesthesia.172 Yet according to Dr. Peter Sebel, an expert on measuring anesthetic depth
in patients during surgery, “snoring” or “whether the patient appears to be asleep” are
“not adequate measures of anesthetic depth.”173
Corrections officials have not publicly explained why no one with appropriate training
remains alongside the prisoner to determine the effectiveness of the anesthesia before
the other drugs are administered. Maybe they want to protect the anonymity of members
of the execution team. But their identities can be hidden from the public through
surgical caps and masks, standard issue uniforms and shoes. Maybe they want to spare
someone who is participating in an execution from having to stand in intimate proximity
to the person being killed. Human Rights Watch recognizes that standing alongside a
person being killed would—indeed should—be emotionally difficult. But corrections
agencies should not put prisoners at risk of pain simply to spare the feelings of the
executioners.

172

Interview with Beard.

173

E-mail correspondence to Human Rights Watch from Dr. Peter Sebel, professor and vice-chair, Department
of Anesthesiology, Emory University School of Medicine, April 4, 2006.

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IV. Physician Participation in Executions and Medical Ethics
States present lethal injections as a quasi-medical way of executing the condemned. New
Jersey law goes so far as to refer to the lethal chemicals as “execution medications.”174
But executions are not medical procedures, and professional ethics prohibit doctors
from participating in them. Indeed, it was the growing practice of lethal injection
executions that prompted the medical community to clarify and solidify its position that
physician participation in executions violates the ethical precepts of the profession.
The prohibition against physician participation in executions is rooted in the medical
ethics of a profession committed to the principles of non-malfeasance (the avoidance of
causing harm) and beneficence (the affirmative provision of good).175 The American
Medical Association’s “Code of Ethics” states: “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.”176 The AMA defines the prohibited
participation to include monitoring vital signs, attending or observing as a physician,
rendering technical advice regarding executions, selecting injection sites, starting
intravenous lines; prescribing, preparing, administering or supervising the injection of
drugs; inspecting or testing lethal injection devices; and consulting with or supervising
lethal injection personnel. Under the AMA Code, the only permissible participation by a
physician in an execution would be to provide a sedative to a prisoner upon his request
prior to his execution and to certify the prisoner’s death after another person has
pronounced it.177 The code of ethics for the Society of Correctional Physicians states:
“The correctional health professional shall not be involved in any aspect of execution of
the death penalty.”178 The American Nurses Association has adopted a similar provision,
stating: “When the health care professional serves in an execution under circumstances
that mimic care, the healing purposes of health services and technology become
distorted.”179

174

“Preparation of Execution Substances and Medications,” New Jersey Administrative Code Title 10A,
Section 23-2.13.
175

See, generally, American College of Physicians and Human Rights Watch, “Chapter 5: Medical Ethics and
Physician Involvement,” Breach of Trust (New York: Human Rights Watch 1994).
176

American Medical Association, “Code of Ethics,” Article 2.06, 1992 (copy on file with Human Rights Watch).

177

Ibid.

178

Society of Correctional Physicians, “Position Statement on Licensed Health-Care Providers in Correctional
Institutions,” http://www.corrdocs.org/resources/position.html#resolutions (retrieved April 2, 2006).

179

American Nurses Association, “Ethics and Human Rights Position Statement: Nurse’s Participation in Capital
Punishment,” December 8, 1994, http://nursingworld.org/readroom/position/ethics/prtetcptl.htm (retrieved April
5, 2006).

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Despite medical ethics, twenty-eight states require a physician to determine or
pronounce death during an execution.180 Nine states require the presence of a physician
without indicating the purpose of the physician’s presence.181 “One can only surmise
that medical expertise is desired by those states to ensure that the execution runs
smoothly, i.e., to respond in case something goes awry, or to pronounce death.”182 Some
state rules call specifically for a more direct role for physicians. For example, in Oregon,
departmental procedures specify that the physician “will be responsible for observing the
execution process and examining the condemned after the lethal substance(s) has been
administered to ensure that death is induced.”183 California regulations require physicians
to fit the heart monitor to the condemned inmate and to monitor the inmate’s heart. In
Oklahoma, the original protocol devised by Chapman required a physician to inspect the
catheter and monitoring equipment and to make certain the fluid would flow into the
inmate’s vein. That provision is not present, however, in the current Oklahoma
protocol.184
Physicians have, in fact, participated directly in the execution process itself. In 1990,
three physicians administered the first lethal injection execution in Illinois.185 For a
number of years, anesthesiologists injected the drugs in Arizona’s lethal injection
executions, although that function is no longer undertaken by a doctor.186 During
Texas’s first lethal injection execution, Dr. Ralph Gray, the state prison medical director,
was present, along with Dr. Bascom Bentley, a physician in private practice, to
pronounce the prisoner’s death. They watched as execution team members struggled to

180

American College of Physicians and Human Rights Watch, Breach of Trust, p. 32. The AMA distinguishes
between “pronouncing” death, which they consider unethical, and “certifying” death, which is acceptable. The
difference is that the former involves monitoring the condition of the prisoner during the execution to determine
at which point the individual has died; whereas certifying is confirming the individual is dead after another has
pronounced it. Council on Ethical And Judicial Affairs, “Physician Participation in Capital Punishment,” Journal
of the American Medical Association, 1993, p. 270, 365-368.
181

American College of Physicians and Human Rights Watch, Breach of Trust, p. 32.

182

Ibid.

183

Oregon Department of Corrections, “Capital Punishment Death by Lethal Injection,” Rule No. 24 (Tab 66),
OAR 291-24-045, quoted in American College of Physicians and Human Rights Watch, Breach of Trust, p.1819.
184

Ibid. See also: Affidavit of Mike Mullin; e-mail from Lisa McCalmont.

185

American College of Physicians and Human Rights Watch, Breach of Trust, p. 10

186

Interview with Myers.

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find intravenous access.187 Eventually, the team convinced Gray to examine the prisoner
and point out the best injection site.188 Gray had also watched the warden mix the
chemical agents. When the warden tried to push them through the syringe, he saw that
because the warden had accidentally mixed all the chemical agents together, they had
“precipitated into a clot of white sludge.”189 When Gray went to pronounce the prisoner
dead, he found the prisoner was still alive. Gray and Bentley suggested allowing more
time for the drugs to circulate.190
More recently, a physician, who requested that his name and state remain anonymous,
described three lethal injection executions where the execution technicians were having a
hard time finding a vein to establish an intravenous line, because the prisoners were
obese or had a past history of intravenous drug use, or both.191 Although present to
monitor the EKG machine and pronounce death, the physician was called upon to help
establish an intravenous line after the technicians had tried to do so for thirty minutes
without success.192 During another execution in which the technicians could not find a
vein, the physician also could not, and, in the end, he needed to place a central line—a
complex and highly technical procedure which involves inserting the catheter in one of
the deep large veins in the groin, chest, or neck.193
As the above examples suggest, executions can and do go awry, and it is not clear what
would happen sometimes if physicians were not present. As one doctor who has
certified the deaths of executed inmates noted, “If the doctors and nurses are removed, I
don’t think [lethal injection] could be competently or predictably done.”194
Although there are exceptions, there is strong resistance in the medical profession to
directly contributing to the “success” of an execution. Even doctors who work for
187

Atul Gawande, “When Law and Ethics Collide—Why Physicians Participate in Executions,” New England
Journal of Medicine, Vol. 354, No. 12, March 23, 2006, p. 1221-1229,
http://content.nejm.org/cgi/content/full/354/12/1221?hits=20&where=fulltext&andorexactfulltext=and&searchter
m=%22Lethal+injection%22&sortspec=Score%2Bdesc%2BPUBDATE_SORTDATE%2Bdesc&excludeflag=TW
EEK_element&searchid=1&FIRSTINDEX=0&resourcetype=HWCIT (retrieved April 5, 2006). The involvement of
physicians in lethal injection executions is discussed more fully in American College of Physicians and Human
Rights Watch, Breach of Trust.
188

Gawande, “When Law and Ethics Collide.”

189

Ibid. The article does not explain whether new syringes were then prepared.

190

Ibid.

191

Ibid.

192

Ibid.

193

Gawande, “When Law and Ethics Collide.” For information about central line access: e-mail correspondence
to Human Rights Watch from Heath, April 5, 2006.
194

Gawande, “When Law and Ethics Collide.”

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correctional agencies have refused to participate in executions, sometimes at
considerable professional cost.195 In Colorado, for example, the medical staff at the
Department of Corrections refused “to have anything to do with the executions,” which
is why the state uses EMTs to insert the catheter and inject the drugs.196
Human Rights Watch recognizes that the ethical prohibition on physician participation
in executions limits the way states can conduct lethal injection executions. This is a
dilemma of the states’ making—by their refusal to abolish capital punishment—and it is
a dilemma states must resolve if they continue to use lethal injection executions. For
example, alternative methods of lethal injection have been suggested that would negate
the need for anesthesiologists to monitor levels of unconsciousness. Some states are
considering legislation to prevent physician liability for participating in executions in
breach of medical ethics, in the hopes this will facilitate their participation in
executions.197 It is up to state legislators and corrections agencies to determine how to
proceed, but they must do so respecting the human rights injunction to use the
execution methods that will cause the least possible pain and suffering.

195

For examples of corrections medical staff refusing to participate, see: American College of Physicians and
Human Rights Watch, Breach of Trust, p.26-29.
196

Interview with Atherton. EMTs apparently are not subject to the same ethical restrictions as physicians.

197

Georgia House Bill 57 (2006) proposes: “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 medical professional licensed in the State of Georgia." (copy on file with Human Rights Watch). Oklahoma
House Bill 2660 proposes: “No licensing entity, board, commission, association, or agency shall file, attempt to
file, initiate a proceeding, or take any action to revoke, suspend, or deny a license to any person authorized to
operate as a professional in the State of Oklahoma, for the reason that the person participated in any manner in
the execution process as required or authorized by law or the Director of the Department of Corrections” (copy
on file with Human Rights Watch).

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V. Case Study: Morales v. Hickman
In Morales v. Hickman, California prisoner Michael Angelos Morales sought a stay of
execution so the court could conduct a full evidentiary hearing on his Eighth
Amendment challenge to the state’s lethal injection procedures.198 Morales was able to
present to the court far more compelling and extensive evidence regarding possible
problems in prior California executions by lethal injection than any other court in
California or elsewhere had previously received, including six California execution logs,
which suggested the prisoners were still breathing, and conscious, while the other drugs
were administered.199
Troubled by the evidence, the court took the unusual step of telling the corrections
department it could go ahead with the execution only if it changed its protocol for
executing Morales in one of two ways: either administer a single massive dose of a
barbiturate, or have “a ‘qualified individual’ with formal training and experience in the
field of general anesthesia” ensure that Morales was in fact unconscious before any other
drugs were injected.200 The court in Morales also urged the state to “conduct a thorough
review of its lethal injection protocol, regardless of whether Morales is executed
according to one of the court’s suggested methods.”201 The court pointed out that, given
the questions raised by Morales and others before him, a “proactive approach by
Defendants would go a long way toward maintaining judicial and public confidence in
the integrity and effectiveness of the protocol.”202
The Department of Corrections chose the option of executing Morales using the threedrug protocol subject to the condition of having a qualified person monitor Morales to
determine his anesthetic depth before the other drugs were initiated. The Department
initially proposed the warden of San Quentin as the person to determine whether
Morales was sufficiently unconscious, even though the warden had no medical or
198

See Plaintiff’s Motion for Temporary Restraining Order, Morales v. Hickman, Case No. C062, January 26,
2006.
199

Due to ongoing litigation, some of the Plaintiff’s Exhibits are under court seal. Those Plaintiff’s Exhibits that
are public record are available online at:
http://www.ca9.uscourts.gov/ca9/Documents.nsf/54DBE3FB372DCB6C88256CE50065FCB8/E0489B00C2CB5
906882571190006A91E?OpenDocument#06-70884 and
http://www.ca9.uscourts.gov/ca9/Documents.nsf/54DBE3FB372DCB6C88256CE50065FCB8/E0489B00C2CB5
906882571190006A91E?OpenDocument#06-99002 (retrieved March 24, 2006).

200

U.S. District Court for the Northern District of California, Order Denying Conditionally Plaintiff’s Motion for
Preliminary Injunction, Morales v. Hickman, Case No. C062, February 14, 2006.
201

Ibid., p.13.

202

Ibid.

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otherwise relevant background.203 When the public spokesperson for the California
Attorney General, responding to press inquiries about the Morales case, was asked if the
Department of Corrections felt the warden was qualified to monitor the anesthetic depth
of Morales during his execution, he replied, “Well, not to a medically-trained standard,
but yes to a lay-person standard.”204
The proposal to have the warden monitor Morales was quickly rejected by the judge.
The Department then found two anesthesiologists willing to be present at the
execution.205 The two withdrew after the Court of Appeals for the Ninth Circuit added a
stipulation requiring the anesthesiologists personally administer additional medication if
the prisoner remained conscious or was in pain.206 In the end, no trained personnel
could be found to undertake the role envisioned by the courts, and the execution was
stayed when California refused to execute Morales with a massive dose of sodium
thiopental.207 When Human Rights Watch asked the California Attorney General’s
public spokesperson why the corrections department did not choose the sodium
thiopental option, he responded, “[The execution] would take too long.”208
The judge has ordered a full evidentiary hearing on California’s lethal injection
procedures for May 2 through 3, 2006.209
In the meantime, California corrections officials continue to tinker with their execution
protocols. In March, the Department of Corrections abruptly announced changes to its
protocol: the sodium thiopental will be administered in a continuous drip, rather than a

203

Human Rights Watch telephone interview with Nathan Barankin, spokesperson for the California Attorney
General Bill Lockyer, March 30, 2006.
204

Ibid.

205

Defendant’s Response to Court’s Conditional Denial of Preliminary Injunction, Morales v. Hickman, Case No.
C062, February 15, 2006.
206

Morales v. Hickman, No. CV 06 00926 JF (Ninth Circuit February 20, 2006); John Broder and Carolyn
Marshall, “Questions Over Method Lead to Delay of Execution,” New York Times, February 2, 2006, p. A11.
207

“Statement of California Department of Corrections and Rehabilitation Warden Steven Ornoski,” issued
February 21, 2006, http://www.cya.ca.gov/communications/moralesexecutiondelay.html (retrieved April 4, 2006)
(the warden explains that the state cannot comply with the judge’s orders and thus has called off the execution
of Morales). The judge’s order said the state could proceed with the execution on February 21 under the two
conditions mentioned above, or—if the state did not execute Morales on February 21—a stay would be issued
by order of the court for purposes of holding an evidentiary hearing on the constitutionality of lethal injection.
Morales v. Hickman, U.S. District Court for the Northern District of California, Order Denying Conditionally
Plaintiff’s Motion for Preliminary Injunction, Case No. C062, February 14, 2006.
208

Interview with Barankin.

209

Order Denying Conditionally Plaintiff’s Motion for Preliminary Injunction, U.S. District Court for the Northern
District of California, Morales v. Hickman, Case No. C062, February 14, 2006.

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single dose of anesthesia, and the dosage of each of the three drugs has been reduced.210
The rational for the lowered doses is not clear. The changes were a result of
consultations with corrections department staff and did not involve outside medical
experts.211 California officials claim the litigation and discussions about prior executions
provided an impetus to revisit the protocol and make changes that will render the
method of execution “equally safe but more effective.”212 At the same time, California
officials contend that they need not choose the “best” method of lethal injection or
prove their lethal injection executions are humane—that burden of proof is on
California’s condemned inmates.213 The state may be correct as a matter of current
constitutional jurisprudence. But the state’s position displays a stunning callousness for
prisoners facing execution as well as utter disregard for its human rights responsibilities.
On April 7, 2006, citing the example of Morales, a federal judge in North Carolina
ordered that an execution there could only take place as scheduled:
[O]n the condition that there are present and accessible to Plaintiff
throughout the execution personnel with sufficient medical training to
ensure that Plaintiff is in all respects unconscious prior to and at the
time of the administration of any pancuronium bromide or potassium
chloride.214
The court also ordered the “execution personnel with sufficient medical training”
present to provide “appropriate medical care” if the prisoner “exhibits effects of
consciousness.”215 The court was disturbed by eyewitness accounts of prisoners’ violent
physical movements after the administration of the lethal injection drugs began, and by
recent toxicology reports that suggest prisoners may not have been sufficiently
anesthetized during their lethal injection executions.216

210

Ibid.

211

Ibid.

212

Ibid.

213

Ibid.

214

Order, Brown v. Beck, No. 5:06-CT-3018-H, April 7, 2006, p. 14 (copy on file with Human Rights Watch).

215

Ibid.

216

Ibid., p. 8-10.

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VI. Botched Executions
A number of lethal injection executions have gone terribly, visibly wrong. Michael
Radelet, a professor of sociology and law, has compiled a list of thirty-six “botched
executions,” which he defines as executions where there is the appearance of “prolonged
suffering” on the part of the condemned inmate “for twenty minutes or more.”217
Because states do not make public, maintain, or even keep records of their executions
(see the “U.S. Constitutional Law” section of Chapter Seven), this list was developed
from media reports. There may be other botched executions that were never reported.
In addition, there is no way to know how many prisoners killed by lethal injections
suffered needlessly, but invisibly, because of inadequate anesthesia masked by a
neuromuscular blocking agent.
Lethal injection executions where the condemned inmate’s suffering was visible to the
witnesses include:
•

Stephen Peter Morin, executed in Texas on March 13, 1982. Execution
technicians probed Morin’s veins over and over again for forty-five minutes
before they found a suitable vein to establish an intravenous line. Like many
death row inmates, Morin had a history of injection drug abuse that had left his
veins compromised, making them difficult to penetrate with a needle.218

•

Raymond Landry, executed in Texas on December 13, 1988. Two minutes
after the injection of the drugs into Landry began, the catheter dislodged out of
his vein and flew through the air. Officials pulled the curtain separating the
witnesses from the inmate. Operating from behind the curtain, it took the
execution team fourteen minutes to reinsert the catheter into the vein. Witnesses
reported hearing at least one “groan” from Landry from behind the curtain.
Twenty-four minutes after the intravenous drugs were injected, and forty
minutes after being strapped to the execution gurney, Landry was pronounced
dead. A spokesperson for the Texas Department of Criminal Justice explained
afterwards, “There was something of a delay in the execution because of what

217

See Michael Radelet, “Post-Furman Botched Executions,”
http://deathpenaltyinfo.org/article.php?scid=8&did=478 (retrieved April 5, 2006). Also: Human Rights Watch
telephone interview with Michael Radelet, professor of sociology, University of Colorado at Boulder, Boulder,
Colorado, March 1, 2006.
218

“Murderer of Three Women is Executed in Texas,” p. 9.

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officials called a ‘blowout.’ The syringe came out of the vein, and the warden
ordered the team to reinsert the catheter into the vein.”219
•

Stephen McCoy, executed in Texas on May 24, 1989. McCoy had a violent
physical reaction to the lethal injection drugs. During the execution, his chest
heaved up and down as he gasped for breath, choked, and arched his back up
and off the gurney. The Texas Attorney General admitted that the inmate
“seemed to have a somewhat stronger reaction,” than other executed prisoners,
adding “The drugs might have been administered in a heavier dose and more
rapidly.”220

•

Charles Walker, executed in Illinois on September 12, 1990. According to
Gary Sutterfield, an engineer from Missouri State Prison retained by the State of
Illinois to assist in Walker’s execution, a kink in the plastic tubing going into the
inmate’s arm stopped the chemicals from reaching Walker. In addition, the
intravenous needle was incorrectly inserted pointing at Walker’s fingers instead
of his heart. The incorrect insertion delayed the flow of drugs to Walker’s heart,
prolonging the execution.221

•

Ricky Ray Rector, executed in Arkansas on January 24, 1992. It took medical
staff, with Rector’s help, more than fifty minutes to find a suitable vein in
Rector’s arm. The curtain remained closed between Rector and the witnesses,
but some reported they could hear Rector moaning. The administrator of the
State Department of Corrections Medical Program said “the moans did come as
a team of two medical people that had grown to five worked on both sides of
his body to find a vein. That may have contributed to his occasional outbursts.”
The state later attributed the difficulty in finding a suitable vein to Rector’s
heavy weight and to his use of an antipsychotic medication.222

•

John Wayne Gacy, executed in Illinois on May 10, 1994. After the execution
began, the chemicals unexpectedly solidified in the IV tube leading to Gacy’s
arm, clogging it, and stopping the chemicals from flowing to his vein. Officials

219

“Landry Executed for ’82 Robbery-Slaying,” Dallas Morning News, December 13, 1988, p. 29A.

220

“Witness to an Execution,” Houston Chronicle, May 27, 1989, p. 11.

221

“Niles Group Questions Execution Procedure,” United Press International, November 8, 1992.

222

“Joe Farmer, Rector, 40, Executed for Officer’s Slaying,” Arkansas Democrat-Gazette, January 25, 1992, p.
1B; Sonja Clinesmith, “Moans Pierced Silence During Wait,” Arkansas Democrat Gazette, January 26, 1992, p.
1B; Marshall Frady, “Death in Arkansas,” The New Yorker, February 22, 1993, p. 105.

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drew the blinds covering the window through which the witnesses were
observing the execution, while the execution team replaced the clogged tube
with a new one. Ten minutes later, the blinds were reopened, and the execution
process began again. It took eighteen minutes to complete. In news reports,
anesthesiologists blamed the problem on the inexperience of prison officials
who were conducting the execution, noting that even simple procedures taught
in an “IV 101” class would have prevented the error.223
•

Emmit Foster, executed in Missouri on May 3, 1995. Seven minutes after the
lethal chemicals began to flow into Foster’s arm, the chemicals stopped flowing
through the tube. With Foster gasping and convulsing, the execution was halted,
and the blinds covering the window between the witnesses and Foster were
drawn. The execution proceeded behind the blinds. Thirty minutes later, Foster
was pronounced dead. Three minutes later the curtains were opened so the
witnesses could view the corpse. The coroner who pronounced Foster dead
explained that Foster had been too tightly strapped to the gurney, restricting the
flow of the chemicals into his veins. A corrections staff member, upon the
coroner’s recommendation, finally loosened the straps, and Foster died several
minutes after that.224

•

Tommie J. Smith, executed in Indiana on July 18, 1996. Smith’s small veins
made it difficult for the execution technicians to find a suitable vein, and a
physician was called in. Smith was given a local anesthetic, and the physician
twice attempted to insert a catheter into Smith’s neck. When that failed, the
angio-catheter was inserted in Smith’s foot. Only then were witnesses allowed to
observe the process. The lethal drugs were finally injected into Smith forty-nine
minutes after the first attempts, and it took another twenty minutes before his
death was pronounced.225

•

Michael Eugene Elkins, executed in South Carolina on June 13, 1997.
Because Elkin’s body was swollen from liver and spleen problems, it was
difficult for the executioners to locate a suitable vein for the catheter insertion.
The executioners ultimately probed for a vein in his neck. Elkins tried to assist

223

Rob Karwath and Susan Kuczka, “Gacy Execution Delay Blamed on Clogged IV Tube,” Chicago Tribune,
May 11, 1994, p. 1 (Metro Lake Section).
224

Tim O’Neil, “Too-Tight Strap Hampered Execution,” St. Louis Post-Dispatch, May 8, 1995, p. 6B.

225

Sheri Edwards and Suzanne McBride, “Doctor’s Aid in Injection Violated Ethics Rule: Physician Helped
Insert the Lethal Tube in a Breach of AMA’s Policy Forbidding Active Role in Execution,” Indianapolis Star, July
19, 1996, p. A1.

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48

the executioners, asking, “Should I lean my head down a little bit?” as they
probed for a vein. After numerous failures, a usable vein was found.226
•

Joseph Cannon, executed in Texas on April 23, 1998. After Cannon made his
final statement, the execution process began. A vein in Cannon’s arm collapsed
and the needle popped out. Seeing this, Cannon lay back, closed his eyes, and
exclaimed to the witnesses: “It’s come undone.” Officials then pulled a curtain
back to block the view of the witnesses, reopening it fifteen minutes later, when
a weeping Cannon made a second final statement and the execution resumed.227

•

Claude Jones, executed in Texas on December 7, 2000. It took the execution
team thirty minutes to find a suitable vein, in part because of Jones’s history of
drug abuse. Warden Jim Willet, the man in charge of the execution, stated:
The medical team could not find a suitable vein. Now I was really
beginning to worry. If you can’t stick a vein then a cut-down
[where a cut is made into the vein to insert the chemicals] has to
be performed. I have never seen one and would just as soon go
through the rest of my career the same way. Just when I was really
getting worried, one of the medical people hit the vein in the left
leg.228

•

226
227

Jose High, executed in Georgia on November 7, 2001. High was
pronounced dead some one hour and nine minutes after the execution
began. After attempting to find a useable vein for thirty-nine minutes,
the emergency medical technicians under contract to do the execution
abandoned their efforts. Eventually, one needle was stuck in High’s
hand, and a physician was called in to insert a second needle between his
shoulder and neck.229

“Killer Helps Officials Find A Vein At His Execution,” Chattanooga Free Press, June 13, 1997, p. A7.
st

“1 Try Fails to Execute Texas Death Row Inmate,” Orlando Sentinel, April 23, 1998, p. A16; Michael
Graczyk, “Texas Executes Man Who Killed San Antonio Attorney at Age 17,” Austin American-Statesman, April
23, 1998, p. B5.
228

Sarah Rimber, “Working Death Row,” New York Times, December 17, 2000, p. 1.

229

Rhonda Cook, "Gang leader executed by injection Death comes 25 years after boy, 11, slain" Atlanta
Journal Constitution, November 7, 2001, p. B1.

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Because of recent litigation in North Carolina challenging that state’s lethal injection
protocol, evidence of a number of botched executions in that state have recently become
public:
•

Willie Fisher, executed in North Carolina on March 9, 2001. After appearing to
lose consciousness, Fisher began convulsing, and his eyes opened. A witness
described Fisher as trying to catch his breath, with his chest heaving
repeatedly.230

•

Eddie Ernest Hartman, executed in North Carolina on October 3, 2003. As
the drugs were being administered, Hartman’s throat began alternately thrusting
outward and collapsing inward. His neck pulsed, bulged, and shook repeatedly.
Hartman’s eyes were open, and his body convulsed and contorted throughout
the execution until he died.231

•

John Daniels, executed in North Carolina on November 14, 2003. Daniels lay
still as the warden announced that the execution would proceed. Then suddenly,
he started to convulse. He sat up, and witnesses could hear him gagging through
the glass that separated him from them. After laying down again for a brief time,
he sat up, gagged, and choked, while his arms appeared to be struggling
underneath the sheet covering him.232

Even when lethal injections have appeared to proceed smoothly, however, they may
nonetheless have involved considerable pain and suffering. The inability to ascertain
whether or not more prisoners have suffered during their executions stems from the use
of pancuronium bromide, which prevents the prisoners from communicating verbally or
physically what they are experiencing. Witnesses to the execution see a person lying
quietly; they have no way of knowing whether he is in fact properly anesthetized or
whether he is experiencing excruciating pain behind his paralyzed face.
Execution records—e.g., execution logs, autopsies, and toxicology reports—are
necessary to conduct accurate post-mortem reviews of how the execution proceeded,
including whether the prisoner reached an appropriate level of anesthesia.233 But
230

Order. Brown v. Beck, No. 5:06-CT-3018-H, April 7, 2006, p. 9.

231

Ibid., p. 10.

232

Ibid.

233

In April of 2005, a team of medical doctors reported in the British medical journal The Lancet that toxicology
reports on forty-three of forty-nine executed inmates revealed the anesthetic administered during lethal

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corrections agencies have refused to create or keep such records, and agencies have
refused to make them publicly available when they have been created or kept.234 For
example, Texas, which has conducted 362 lethal injection executions, the most in the
United States,235 stopped conducting autopsies of its executed prisoners in 1989.236
Execution logs from California—the only state in which such records have been made
publicly available, and only because of litigation—strongly suggest that lethal injection
executions in that state are not going according to plan. When a barbiturate like sodium
thiopental is used during surgery, the patient goes limp within seconds after the drug
begins flowing into his veins.237 He may take a few breaths, cough, hiccup, or have some
erratic breathing, but there would be no regular and ongoing up and down chest
movements.238 The anesthesia removes the patient’s ability to breathe on his own, which
is why a doctor will intubate him so that a machine can do his breathing for him during
surgery.239 Yet in California, six recent lethal injection execution logs indicate that
prisoners were breathing more than a minute after they should have received a dose of
sodium thiopental ten times that used in surgery.240 According to the execution logs:241

injections was lower than that required for surgery. Indeed, in twenty-one of the inmates, the concentrations of
thiopental in the blood were consistent with awareness. The report concludes, "Failures in protocol design,
implementation, monitoring and review might have led to the unnecessary suffering of at least some of those
executed. Because participation of doctors in protocol design or execution is ethically prohibited, adequate
anesthesia cannot be certain. Therefore, to prevent unnecessary cruelty and suffering, cessation and public
review of lethal injection is warranted." G. K. Leonidas, et al., “Inadequate Anesthesia in Lethal Injection for
Execution,” The Lancet, Vol.365 (9468), April 16, 2005, p.1412. Medical experts have subsequently discredited
the Lancet report because the blood used in the toxicology analysis was drawn many hours after the execution.
To be most accurate, blood used for a toxicology analysis would have to be drawn soon after the prisoner’s
death. See, e.g., “Study: Lethal Injection Not Painless,” Chicago Tribune, April 15, 2005,
http://www.med.miami.edu/communications/som_news/index.asp?id=470 (retrieved April 2, 2006).
234

See, for instance, policies in Missouri, Louisiana, and North Carolina: Missouri does not keep any records
from its executions (Defendant Crawford’s Answers to Plaintiff’s First Interrogatory, Taylor v. Crawford, Case
No. 05-4173-CV-C-SOW, September 12, 2005, p. 24); Louisiana does not keep its execution records for more
than five years (Inglis Deposition, p. 57); North Carolina does not keep any execution records either (Testimony
of Polk, p.114).
235

DPIC, “Execution Database.”

236

Harris v. Johnson, et al., April 15, 2004, p. 5.

237

Interview with Heath, March 6, 2006; Interview with Dershwitz, March 1, 2006.

238

E-mail correspondence to Human Rights Watch from Dershwitz, March 9, 2006.

239

Ibid.

240

Doses of sodium thiopental used in surgery are typically one-tenth the five grams called for in California’s
lethal injection executions at the time of these six executions. San Quentin Procedure No. 770, p. 32. California
has since changed its dosage of sodium thiopental, from five grams to 1.5 grams. See Chapter Five on the
Morales v. Hickman case.
241

It is unclear who was responsible for keeping the execution log and what the protocol was for determining
when respirations ceased. E-mail correspondence to Human Rights Watch from John Grele, attorney for
Morales, April 1, 2006. (Copies of the six execution logs are on file with Human Rights Watch.)

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•

Jaturun Siripongs was executed on February 9, 1999. The administration of
sodium thiopental began at 12:04 a.m., and the administration of pancuronium
bromide began at 12:08 a.m., yet breathing did not cease until 12:09 a.m., four minutes
after the administration of sodium thiopental began and one minute after the administration of
pancuronium bromide began.

•

Maunuel Babbitt was executed on May 4, 1999. The administration of sodium
thiopental began at 12:28 a.m., and the administration of pancuronium bromide
began at 12:31 a.m., yet respirations did not cease until 12:33 a.m., five minutes after the
administration of sodium thiopental began and two minutes after the administration of
pancuronium bromide began.

•

Darrell Keith Rich was executed on March 15, 2000. The administration of
sodium thiopental began at 12:06 a.m., and the administration of pancuronium
bromide began at 12:08 a.m., yet respirations did not cease until 12:08 a.m., when
pancuronium bromide was injected, two minutes after the administration of sodium thiopental
began.242

•

Stephen Wayne Anderson was executed on January 29, 2002. The
administration of sodium thiopental began at 12:17 a.m., and the administration
of pancuronium bromide began at 12:19 a.m., yet respirations did not cease until
12:22 a.m., five minutes after the administration of sodium thiopental began and three minutes
after the administration of pancuronium bromide began.

•

Stanley Tookie Williams was executed on December 13, 2005. The
administration of sodium thiopental began at 12:22 a.m.; the administration of
pancuronium bromide began at 12:28 a.m.; and the administration of potassium
chloride began at 12:32 or 12:34 a.m. (there is some discrepancy in the execution
log as to when the potassium chloride was administered); yet respirations did not
cease until either 12:28 a.m. or 12:34 a.m. (again there is an inconsistency in the records),
either six or twelve minutes after the administration of the sodium thiopental began, either at
the same time as or six minutes after the administration of pancuronium bromide began, and

242

The execution log states that Rich’s respirations ceased at 12:08 a.m., but notes that Rich had “chest
movements” lasting from 12:09 to 12:10 a.m. These chest movements began after Rich had supposedly
stopped breathing and three minutes after the administration of the thiopental. The chest movements are
“consistent with an attempt to fight off the accruing paralytic effect of the pancuronium.” Third Declaration of Dr.
Mark Heath, Morales v. Hickman, February 9, 2006, p. 6.

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either four minutes before or at the same time as the administration of potassium chloride
began.243
•

Clarence Ray Allen was executed on January 17, 2006. The administration of
sodium thiopental began at 12:18 a.m., yet respirations did not cease until 12:27 a.m.,
when pancuronium bromide was injected, nine minutes after the administration of sodium
thiopental began.

The logs do not prove that these six men were conscious when the pancuronium
bromide and potassium chloride were injected. But the fact that their breathing did not
stop when expected suggests adequate doses of sodium thiopental may not have been
administered. At the very least, the logs point to the importance in three-drug lethal
injection executions of having someone present to establish the level of anesthesia
before the second and third drugs are administered.
Eyewitness testimony about lethal injection executions in Texas also raises concerns
some prisoners in Texas were breathing after the administration of the sodium
thiopental should have paralyzed their lung muscles. Reverend Carroll Pickett witnessed
ninety-five lethal injection executions in Texas from 1982 through 1995.244 As the
condemned inmate’s spiritual advisor on the day of his execution, Pickett stayed with the
inmate throughout the execution until the inmate died. Once the inmate was on the
gurney, Pickett stood next to him, his right hand touching the inmate’s right knee.
During some of the executions, he “saw some of the boys with their eyes open and
looking at me after the thiopental came, I felt like I let [the prisoner] down, because the
execution was not proceeding exactly as I told [the prisoner].”245 Human Rights Watch
asked Pickett if he signaled anything to the warden when he noticed a prisoner’s eyes
open. He said no, that it had not been clear to him that something was wrong.246 When
asked if he remembered any of the inmates breathing after the administration of the
sodium thiopental, Pickett said that he “did not see any of them stop breathing after
that. That just put them to sleep. But they kept breathing. All of them.”247

243

The records are inconsistent. The formal execution log suggests that Williams stopped breathing at 12:28
a.m. and indicates that potassium chloride was injected at 12:32 a.m., whereas the execution team’s log states
that Williams stopped breathing at 12:34 a.m., when the potassium chloride was injected. It appears that the
formal log was altered without any indication as to who made the alteration.
244

Interview with Pickett.

245

Ibid.

246

Ibid.

247

Ibid.

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Pickett did not have any medical training; he had not been asked to monitor the
condemned inmates breathing; and the executions were many years ago. Nevertheless,
his memory of open eyes and breathing prisoners suggests there in fact may have been
serious problems with the way Texas executed its prisoners.

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VII. International Human Rights and U.S. Constitutional Law
International Human Rights Law
The cornerstone of human rights is respect for the inherent dignity of all human beings
and the inviolability of the human person. The Universal Declaration of Human Rights,
the foundation for human rights law, is premised upon the recognition of “the inherent
dignity and … the equal and inalienable rights of all members of the human family.”248
Human Rights Watch believes the inherent dignity of the person cannot be squared with
the death penalty, a form of punishment unique in its cruelty and finality, and a
punishment inevitably and universally plagued with arbitrariness, prejudice, and error.
While international law does not prohibit capital punishment, the trend in law and
practice is for its abolition.
States that do not abolish capital punishment must still abide by human rights standards
in their choice of execution methods. The United States is a party to the International
Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.249 While neither
treaty prohibits capital punishment, the prohibitions in both against torture and cruel,
inhuman, or degrading punishment apply to the manner in which executions are carried
out.250
Human rights law imposes an obligation on states that impose capital punishment to use
methods of execution that minimize pain and suffering. The U.N. Safeguards
Guaranteeing Protection of the Rights of Those Facing the Death Penalty, approved by
the Economic and Social Council in 1984, provides that where capital punishment
occurs, it shall be “carried out so as to inflict the minimum possible suffering.”251
248

“Preamble,” Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).

249

Article 6 of the ICCPR on the right to life discusses the death penalty in countries that have not abolished it.
Section 6 states that “[n]othing in this article shall be invoked to delay or to prevent the abolition of capital
punishment by any State Party to the present Covenant.” ICCPR, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp.
(No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.
250

The U.N. Human Rights Committee (HRC) has noted that because the ICCPR does not prohibit the
imposition of the death penalty in certain limited circumstances, capital punishment is not per se a violation of
the prohibition on torture and other cruel punishment. Instead it is necessary to consider the facts and the
circumstances of each case, including personal factors regarding the condemned person, conditions on death
row, and “whether the proposed method of execution is particularly abhorrent.” Kindler v. Canada, HRC,
communication no. 470/1991, U.N. Doc. CCPR/C/48/D/470/1991 (1993) (citing Soering v. United Kingdom,
European Court of Human Rights).
251

Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, E.S.C. res. 1984/50,
annex, 1984 U.N. ESCOR Supp. (No. 1) at 33, U.N. Doc. E/1984/84 (1984), safeguard 9,
http://www1.umn.edu/humanrts/instree/i8sgpr.htm (retrieved on April 11, 2006).

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The Human Rights Committee (HRC), the body of experts that monitors state
compliance with the ICCPR, has stated that when the death penalty is applied, “it must
be carried out in such a way as to cause the least possible physical and mental
suffering.”252 The HRC applied this standard in the case of Charles Chitat Ng, who
fought extradition from Canada to the United States because he might face execution by
lethal gas.253 After reviewing evidence concerning the manner by which lethal gas kills
and the length of consciousness after asphyxiation begins, the committee concluded that
execution by means of lethal gas “would not meet the test of ‘least possible physical and
mental suffering,’” and it thus was cruel and inhuman.254
Similar standards have been adopted elsewhere. The European Union in 2001 adopted
guidelines for combating torture that urge countries with the death penalty to ensure that
the execution methods used cause the “least possible physical and mental suffering.”255
International human rights law thus requires public officials to forego an execution
method in favor of alternatives that cause less or no suffering. Human Rights Watch also
believes the law requires officials to choose the execution method that carries the least
“risk” of suffering. If one method inherently has a risk—even a small one—of suffering,
it should be eschewed in favor of a method that has no risk, or a smaller risk. In
assessing the possibility of pain and suffering, public officials should consider not only
risks inherent in a particular procedure, but the likelihood of mistakes or accidents.
Death penalty states do not satisfy their human rights responsibilities simply by choosing
lethal injection over, for example, lethal gas. Rather, they must determine whether their
particular lethal injection drug protocols and methods of administration cause the “least
possible physical and mental suffering” compared to other possible drugs and methods
of administration. Exercising human rights responsibilities requires a careful initial
assessment, and then continual reassessment of the state of the art regarding anesthesia,
analgesic, and death-inducing drugs, and incorporating the best available scientific and
medical expertise into drug and administration protocols.

252

th

ICCPR, General Comment 20, U.N. HRC, 44 Session, U.N. Doc ccpr/c/21/Add.3 (1992), p. 6.

253

See Chitat Ng v. Canada, Communication No. 469/1991, U.N. Doc. CCPR/C/49/469/1991 (1994),
http://www1.umn.edu/humanrts/undocs/html/dec469.htm (retrieved March 24, 2006).
254

th

U.N. HRC, 49 Session, UN doc, CCPR/49/D/469 (1991), decision issued January 4, 1994.

255

European Union, “Guidelines to EU policy towards third countries on torture and other cruel, inhuman or
degrading treatment or punishment,” adopted by the EU General Affairs Council, Luxembourg, April 9, 2001,
http://ue.eu.int/uedocs/cmsUpload/TortureGuidelines.pdf (retrieved March 14, 2006).

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Human Rights Watch is not aware of any U.S. death-penalty state that has either met its
international human rights obligations with regard to its choice of method of lethal
injection or their ongoing use of that method. There is a growing body of evidence, as
discussed above, suggesting that the three-drug protocol and methods of administration
used by most states carry a foreseeable, albeit unquantifiable, risk of physical and mental
suffering beyond that inherent in knowing one is being executed. The risk is not simply
that which is inherent in any human endeavor, i.e., inevitable risks of accidents and
errors. Rather, the risk exists because of deliberate choices made by public officials,
including the specific drugs they have chosen, their failure to require that executioners
possess appropriate training and experience, and their choice of haphazard and medically
unsound procedures for the administration of the drugs.
Our research indicates that problems with lethal injection executions in the United States
reflect the failure of public officials to take the steps necessary to meet international
human rights standards:
•

State legislators and corrections officials did not develop their lethal injection
procedures with the advice and guidance of medical experts and through a
process of reasoned scientific inquiry. While the historical record is not
complete, it suggests the decision-making processes on the part of corrections
officials were informal or hurried, made by persons who themselves had no
relevant expertise and who did not consult with persons who did. Copying the
procedures of another state—usually Texas—was the prevalent method public
officials used in deciding how to execute their prisoners.

•

There has been no process of constant and informed revision of lethal injection
protocols in light of experience and developments in the fields of anesthetics,
analgesics, and lethal drugs. The New Jersey Department of Corrections
correctly acknowledged in 2005 that the “state of the art” with regard to the
most humane method of lethal injection executions is “continually changing.”256
Yet most states cling to their protocols, fighting judicial challenges and refusing
to change.

•

Anesthesiologists, other medical experts, lawyers and others have suggested
alternative methods of lethal injection that would carry less risk of the
condemned inmate experiencing pain and suffering. They have suggested, for

256

Transcript, New Jersey Department of Corrections Public Hearings on Amendments to New Jersey’s Lethal
Injection Protocols, February 4, 2005, p. 33 (copy on file with Human Rights Watch).

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example: a single massive injections of a powerful barbiturate rather than the
complex three-drug cocktail; placing a person trained in anesthetics in the
execution chamber with the prisoner to determine whether he or she is deeply
anesthetized before the pancuronium bromide and potassium chloride are
administered; removing paralytic agents from the drug protocol completely, and
replacing potassium chloride with a painless lethal agent to induce cardiac arrest.
Departments of corrections officials have rejected these suggestions. The only
explanation we have uncovered for their insistence on using existing drug protocols may
be that the current methods better serve the interests of the onlookers—the witnesses
and executioners. If nothing goes wrong, the existing drug protocols kill the prisoner in
a few minutes. By contrast, death from a single injection of a massive amount of a
powerful barbiturate may take half an hour to forty-five minutes. The use of a paralytic
agent ensures the prisoner will be perfectly still and apparently peaceful—regardless of
whether he is in fact conscious and experiencing pain. When the potassium chloride is
administered, his body will not twitch or writhe on the table, as bodies may do when
their hearts suddenly stop. Witnesses and those participating in the execution might be
troubled by the sight of a prisoner convulsing during his execution. They might think
those movements are a sign that the prisoner is experiencing distress—or witnesses may
simply find any movement by a prisoner being executed inherently disturbing.
Human Rights Watch understands public officials would like to protect the feelings and
sensitivities of the executioners and witnesses. But human rights law requires them to
place a higher priority on minimizing the pain and suffering of the condemned prisoners
than on the comfort levels of those who do the killing and those who watch.

U.S. Constitutional Law
Under U.S. law, executions are unconstitutional if they “involve the unnecessary and
wanton infliction of pain”257 or “involve torture or lingering death.”258 What constitutes
“unnecessary” pain is informed by standards of decency as they evolve “in light of
contemporary human knowledge.”259 Where the pain inflicted in an execution results
from “something more than the mere extinguishment of life,” the Eighth Amendment’s
prohibition against cruel and unusual punishment is implicated.260
257

Gregg v. Georgia, 428 U.S. 153 173 (1976) (citing Furman v. Georgia, 408 U.S. 238, 392 (1972)).

258

In Re Kemmler, 136 U.S. 436, 447 (1890).

259

Robinson v. California, 370 U.S. 660, 666 (1962). See also Estelle v. Gamble, 429 U.S. 97, 102 (1976).

260

Furman, 408 U.S. at 265 (quoting Kemmler, 136 U.S. at 447). The Eighth Amendment to the U.S.
Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.”

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Methods of execution once viewed as acceptable can, over time, come to offend Eighth
Amendment standards, as scientific knowledge and society’s norms evolve.261 As Judge
Harry Blackmun explained, “the emphasis [of the Eighth Amendment] is on man’s basic
dignity, on civilized precepts, and on the flexibility and improvement in standards of
decency as society progresses and matures.”262
Execution methods can violate the Eighth Amendment even though they are held out as
humane alternatives, if they subject the condemned prisoner to the foreseeable
likelihood of unnecessary pain or suffering. An isolated “unforeseeable accident … [does
not] add an element of cruelty” to an execution.263 But a foreseeable (or substantial)
likelihood of unnecessary pain or suffering does violate the Constitution—even if the
suffering is not certain, or even likely, to occur in every instance.264
The Supreme Court has never directly addressed the constitutionality of any lethal
injection protocol, although it has acknowledged that lethal injection is subject to Eighth
Amendment requirements.265 Lower federal courts and state courts have continually
rejected prisoners’ claims that their state’s particular lethal injection methods were cruel
and unusual. Some courts concluded there was insufficient evidence of pain and
suffering, or that a particular procedure’s risks were too slight to strike down lethal
injection choices made by state legislatures and their correctional agencies.266 They
reached those decisions without having permitted the prisoners to undertake extensive
discovery and without conducting full evidentiary hearings.267 Other courts avoided
ruling on the merits, holding instead that the prisoner did not raise his claims in a timely
or proper manner.268 Courts have rarely examined the development or justification for

261

E.g., Fierro v. Gamble, 77 F.3d 301, 303 n.1 (Ninth Circuit 1996), vacated on other grounds, 519 U.S. 918
(1996) (noting in challenge to the constitutionality of execution by lethal gas, that California Supreme Court had
last considered such a challenge in 1953, and that the court’s consideration had been limited by then-existing
scientific knowledge).
262

Jackson v. Bishop, 404 F.2d 571,579 (Eighth Circuit 1968).

263

Resweber, 329 U.S. at 464 (emphasis added).

264

Campbell v. Wood, 18 F.3d 662, 687 (Ninth Circuit 1994) (en banc) (risk associated with challenged method
of execution must be more than slight).

265

Nelson v. Campbell, 541 U.S. 637 (2004).

266

Hill v. Florida, No. SC06-2, 2006, Florida Lexis 8 (Florida, January 17, 2006).

267

Brief of Appellant-Plaintiff, Taylor v. Crawford, et al., No. 06-1397, February 24, 2006, p. 33-34. See also
Defendant Crawford’s Answers to Plaintiff’s First Interrogatory, Taylor v. Crawford, Case No. 05-4173-CV-CSOW, September 12, 2005, p. 14-15.
268

E.g., Gomez v. U.S. District Court for Northern District Of California, 503 U.S. 653, 654 (1992) (holding that
particularly where an inmate has engaged in “abusive delay,” the court may consider the state’s interest in
moving forward with the execution in balancing the inequities); LaGrand v. Stewart, 170 F.3d 1158, 1159 (Ninth
Circuit 1999) (stating that petitioner’s challenge to execution method had previously been dismissed as
premature because the method of execution had not yet been chosen); Beardslee, 395 F.3d at 1066-67 (stating

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the challenged protocols, nor have they explored whether a different lethal injection
protocol might carry less risk than the ones currently maintained by the states.
We know of only one case in which a court rejected a Department of Corrections
method for changing its protocols. A judge, on administrative grounds, struck down
New Jersey’s Department of Corrections’ proposed amendments to its lethal injection
regulations, including the removal of an emergency cart from the execution setting.269
Under administrative law, a challenged regulation will stand if the state agency can show
it meets a relatively low standard of rationality. Yet the court held that the new
regulation about the emergency cart, which the New Jersey Department of Corrections
justified as unnecessary because the irreversible nature of lethal injections made it
impossible to revive a condemned inmate, lacked “an expressed reasoned medical
opinion.”270 That is, the Department of Corrections had not come up with evidence that
showed a sound basis for its decision. The court remanded the issue to the Department
of Corrections to give it an opportunity to articulate “a supporting basis for [its
regulations].”271
Under U.S. constitutional jurisprudence, the burden is on the prisoner to prove a
method of lethal injection is cruel and unusual; public officials do not have to prove they
have chosen the best possible method. Prisoners have been hampered in their efforts to
challenge their state’s lethal injection execution protocols by the difficulty of obtaining
documentation on how corrections officials developed their protocols and what
happened during earlier executions. As noted above, some courts did not permit the
prisoners to undertake much discovery. But in addition, states typically do not document
their executions, e.g., keep records of the qualifications of the executioners or logs
indicating the time at which the drugs were administered, whether there were any
problems with the IV insertion or administration of the drugs, the monitoring of
prisoners’ vital signs, etc. In other cases, even if prison officials did create such records,
they were not retained over the years. Some states have simply refused to provide
records that go back in time. They have even made it difficult for prisoners to simply
obtain complete copies of the protocols themselves.272

that the fact that Beardslee waited until his execution was imminent, filing suit one month before his execution
date, after it was already scheduled, weighed against him).
269

In re Readoption with Amendments of Death Penalty Regulations by the New Jersey Department of
Corrections, 367 New Jersey Sup. 61 (2004).
270

Ibid., p. 69.

271

Ibid., p. 71.

272

Ibid.

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Nevertheless, over the years, persistent lawyers have succeeded in obtaining an
increasingly powerful set of evidence about problems with state lethal injection
procedures. The impact of that evidence is apparent in the February 2006 decision by a
federal district court regarding California’s lethal injection protocol (See Chapter Five).
For more than two decades, U.S. courts have been notably and increasingly hostile to
challenges to the fairness of capital trials and sentences brought by prisoners sentenced
to death. When prisoners began bringing cases challenging methods of execution,
including the most recent challenges to lethal injection, the courts responded with what
may best be characterized as judicial impatience and irritation. In the absence of
guidance from the U.S. Supreme Court, lower courts saw the cases as simply another
stalling tactic by death row prisoners and failed to give serious consideration to their
claims.
The Supreme Court has now agreed to decide the case of Hill v. McDonough. The precise
question the court will address in Hill is whether a prisoner may bring an Eighth
Amendment challenge to Florida’s lethal injection protocols by seeking declaratory and
injunctive relief under 42 United States Code, Section 1983, the civil rights statute that
enables plaintiffs to challenge the constitutionality of state actions in federal court.273
The lower courts held that a challenge to the lethal injection protocol was a challenge to
the sentence—which is a habeas case. They therefore concluded condemned prisoner
Clarence Hill was not entitled to an evidentiary hearing or injunction, because the case
he brought as a Section 1983 case should have been brought as a habeas petition.
Moreover, even if it had been brought as a habeas case, it would nonetheless still have
been barred under habeas rules unique to the post-conviction review of sentences.274
Petitioner Hill claims that he is challenging whether a specific lethal injection protocol is
cruel and unusual, and he is not challenging the legality or constitutionality of his death
sentence as such. Numerous amicus briefs have been filed in the case, urging the Court
to recognize the importance of the underlying substantive claim by Hill and to ensure he
is given a full opportunity to develop the evidentiary basis for it. Human Rights Watch
has joined in an amicus brief bringing to the Court’s attention the international human
rights requirement that states must choose a method of execution that inflicts the “least
possible pain and suffering.”275

273

Petitioner’s Brief, Hill v. McDonough, et al., March 6, 2006, p. 2-3.

274

Ibid., p. 4-11.

275

Brief amici curiae of Human Rights Advocates, Human Rights Watch, and Minnesota Advocates for Human
Rights in Support of Petitioner, Hill v. McDonough, No. 05-8794, March 3, 2006, http://hrw.org/us/us030706.pdf
(retrieved April 16, 2006).

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Although the Hill case is ostensibly about the correct procedure by which a prisoner may
challenge his method of execution, its significance may be far greater. The fact that the
Supreme Court took the case signals the impact of the growing number of cases pressing
federal and state courts to address challenges to lethal injection protocols.276 As evidence
of problems mount, and as the background and development of lethal injection
protocols is subjected to greater scrutiny, we hope that courts will be increasingly
responsive to prisoners’ constitutional challenges.

276

As of April 1, 2006, there were eight death row inmates (including Morales and Hill) who had been granted
stays of execution pending resolution of their challenges to lethal injection protocols. These stays included:
Clarence Hill, Florida, by the U.S. Supreme Court; Arthur Rutherford, Florida, by the U.S. Supreme Court;
Michael Taylor, Missouri, by the U.S. Supreme Court; Vernon Evans, Maryland, by the Maryland Court of
Appeals; Michael Morales, California, by the State of California; Richard Tipton, Cory Johnson, and James
Roane, Federal, District Court for District of Columbia. DPIC, “Lethal Injections: Some Cases Stayed, Other
Executions Proceed,” http://www.deathpenaltyinfo.org/article.php?did=1686&scid=64 (retrieved on April 16,
2006). Ten other inmates did not receive stays and were executed by lethal injection. These were: Marion
Dudley, executed in Texas on January 25, 2006; Marvin Bieglher, executed in Indiana on January 27, 2006;
Jamie Elizalde, executed in Texas on January 31, 2006; Glenn Benner, executed in Ohio on February 7, 2006
(Benner did not raise a lethal injection claim); Robert Nelville, executed in Texas on February 8, 2006; Clyde
Smith, executed in Texas on February 15, 2006; Tommie Hughes, executed in Texas on March 15, 2006;
Patrick Moody, executed in North Carolina on March 17, 2006; Robert Salazar, executed in Texas on March 22,
2006; Kevin Kincy, executed in Texas on March 29, 2006. Ibid.

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Appendix A: State Execution Methods

State

Lethal
Injection

Electrocution

Gas
Chamber

Hanging

Firing
Squad

Alabama
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Idaho
Illinois‡
Indiana
Kansas*
Kentucky
Louisiana
Maryland
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire

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State

Lethal
Injection

Electrocution

Gas
Chamber

Hanging

Firing
Squad

New Jersey‡
New Mexico
New York*
North Carolina
Ohio
Oklahoma
Oregon
Pennsylvania
South Carolina
South Dakota
Tennessee
Texas
Utah
Virginia
Washington
Wyoming
Note: The federal government uses the execution method approved in the state in which the prisoner is being
executed.
‡ Both Illinois and New Jersey have declared moratoriums on executions in their states.
* New York’s death penalty was declared unconstitutional on June 24, 2004, but the legislature has yet to take
action on this. Kansas’s death penalty was declared unconstitutional on December 17, 2004; the U.S. Supreme
Court has scheduled oral arguments for April 25, 2006 to determine the constitutionality of the Kansas statute.
Source: Death Penalty Information Center, “Methods of Execution,”
http://www.deathpenaltyinfo.org/article.php?scid=8&did=245 (retrieved April 13, 2006).

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Acknowledgements
This report would not have been possible without the generous help of the medical
experts, lawyers, legal scholars, and corrections officials who shared with us resources,
knowledge, and time.
Jamie Fellner, director of the U.S. Program at Human Rights Watch, and Sarah Tofte,
consultant for the U.S. Program, researched and co-wrote this report.
The report was edited by James Ross, senior legal advisor and Iain Levine, director of
programs at Human Rights Watch. Dr. Annie Sparrow, researcher at Human Rights
Watch, lent medical expertise to the work. Keramet Reiter, associate for the U.S.
program, prepared the report for publication. Human Rights Watch staff Andrea Holley,
publications director, and Fitzroy Hepkins, mailroom manager, provided production
assistance.
Generous financial assistance for the report was provided by the JEHT Foundation.
Support from the Open Society Institute and Peter B. Lewis also made possible our
work on lethal injection executions.

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