Baze v. Rees

 

Q & A

 

9. What is the three-drug protocol and what foreseeable risks are associated with its use in an execution?

 

Almost all states, including Kentucky, that execute individuals by lethal injection, use three drugs to do so.  This is sometimes referred to as the “three-drug formula.”  The drugs are administered in the following sequence: sodium thiopental (an anesthetic intended to cause unconsciousness), pancuronium bromide (a neuromuscular blocking agent to paralyze the individual), and potassium chloride (to cause cardiac arrest and death).  The small variations between states relate to matters such as the doses and concentrations of these drugs -- although the procedures and personnel for administering the drugs vary from state to state.  All three drugs are to be administered intravenously.  See Brief for Petitioners, at 10-12.  For more information about the foreseeable risks associated with the three-drug formula, see Amicus Brief for Michael Morales, Michael Taylor, et al; Amicus Brief of Drs. Kevin Concannon, Dennis Geiser, et al; Amicus Brief of Critical Care Providers and Clinical Ethicists.

Thiopental is a short-acting barbiturate.  When used by anesthesiologists, it serves to temporarily render a patient unconscious and is followed by additional medical procedures and drugs that are administered to ensure that a “surgical depth” of anesthesia has been achieved and is maintained so that the patient does not experience pain or consciousness, that is, any awareness of what is taking place.  See Brief for Petitioners, at 10; Amicus Brief of the American Society of Anesthesiologists in Support of Neither Party, at 5-6.  The American Society of Anesthesiologists (ASA) has published a guide outlining the proper procedures for assessing whether the patient has achieved and is maintained at a “surgical depth” of anesthesia. 

• The duration of unconsciousness depends upon the dose of thiopental.  While the dose typically provided for in lethal injection protocols, if successfully administered into circulation, will produce deep unconsciousness, there are a host of foreseeable situations in which administration errors result in inadequate anesthesia, so that the inmate is conscious during the delivery of the second and third drugs.  See Amicus Brief for Michael Morales, Michael Taylor, et al., at 5-6; Amicus Brief of Drs. Kevin Concannon, Dennis Geiser, et al., at 6.

• The administration of thiopental is a necessary component of the execution procedure because it is the only component that can render the execution humane.  It is necessary to induce surgical anesthesia in executions because the second two drugs used will cause excruciating pain and suffering if injected into conscious individuals.  Importantly, the States acknowledge that pancuronium and potassium should not be administered to unanesthetized inmates because they will cause an unconstitutional amount of suffering.  Dr. Dershwitz, the State’s expert in Baze, agreed that “inducing general anesthesia is ‘critical’ . . . to ensuring a human execution.” Brief for Petitioners, at 11-12, citing the Joint Appendix, at 558.

Pancuronium Bromide is a dangerous drug in the hands of untrained persons.  It paralyzes all voluntary muscles, including the diaphragm, thereby preventing breathing.  However, the drug does not affect consciousness or the ability to feel pain.  It is used in surgery only when necessary to ensure that the procedure can be performed without reflex muscle contraction, and, except in exigent circumstances, it is administered only after the patient is anesthetized.  See Amicus Brief of Drs. Kevin Concannon, Dennis Geiser, et al., at 7-8; Brief for Petitioners, at 10-11.

• If the individual is not unconscious when pancuronium bromide is administered, he will experience the physical and psychological agony of conscious suffocation.  Dr. Mark Dershwitz, the Kentucky Department of Corrections’ expert in Baze, testified that the sensation of being injected with pancuronium is “agonizing” and “scary.”  Brief for Petitioners, at 11, citing the Joint Appendix, at 625-26.  In the Tennessee lethal injection litigation, one of the State’s witnesses, Tennessee Medical Examiner, Dr. Bruce Levy, testified that, without sufficient anesthesia, the administration of pancuronium bromide would cause agony because “a conscious person who is paralyzed would be unable to breathe.  And suffocating to death would be a most violent form of death.”  Harbison v. Little, 2007 WL 2821230, at *11 (M.D. Tenn. Sept. 19, 2007).

• Because he is completely paralyzed, the individual has no ability to convey the fact that he is suffocating to death, and will appear peaceful and unconscious to observers.  Dr. Mark Heath, an anesthesiologist who testified on behalf of petitioner at the hearing in Baze, explained that “[a]ny person or animal who’d been given pancuronium, they’re going to appear serene and tranquil and peaceful and comfortable, regardless of whether they are in fact awake and in agony.”  Brief for Petitioners, at 11, citing the Joint Appendix, at 437.

• In the surgical context, monitoring of anesthetic depth by a trained anesthesia professional at the bedside of the patient is always considered critical to ensuring that the patient is sufficiently anesthetized for the duration the procedure.  When a neuromuscular blocker is used in surgery, such monitoring is particularly crucial to prevent the phenomenon known as “conscious awareness” -- where the patient is awake and experiencing the pain of surgery, but is unable to express that pain because he or she is paralyzed.  In the execution context, administration of pancuronium bromide by unqualified personnel and the failure to follow the ASA’s procedures create a foreseeable risk that execution personnel will not realize that the individual is not sufficiently anesthetized when the pancuronium bromide and the potassium chloride are administered.

• “Neuromuscular blocking agents possess no sedative or pain-relieving properties and therefore serve no palliative function for a dying patient.  At the same time, the use of such drugs brings significant risks to the patient.  Neuromuscular blocking agents can paralyze the patient’s diaphragm and cause a patient to asphyxiate.  In addition, neuromuscular blocking agents can mask the physical signs that doctors look for when attempting to identify whether a dying patient is suffering pain.”  Amicus Brief of Critical Care Providers and Clinical Ethicists, at 5; see also Amicus Brief of Drs. Kevin Concannon, Dennis Geiser, et al., at 7-8.

Potassium Chloride is used to induce cardiac arrest and bring about the death of the inmate. The nerve fibers in the walls of the veins are highly sensitive to potassium ions, which are released when there is an intravenous injection of concentrated potassium.  There is no medical dispute that, if the individual is not deeply unconscious, intravenous injection of the drug causes excruciating pain -- likened to the feeling of setting one’s veins on fire -- followed by a heart attack.  While other heart-stopping drugs that do not cause such pain are available, none are used in lethal injections.  Dr. Dershwitz testified in Baze that “a conscious person given potassium at the concentration level Kentucky uses would be ‘screaming’ in agony.”  Brief for Petitioners, at 11, citing the Joint Appendix, at 600, 604.

• “The use of potassium chloride, the drug that results in death in the Kentucky lethal injection protocol, fails to comply with minimum veterinary standards for the humane euthanasia of animals.”  Amicus Brief of Drs. Kevin Concannon, Dennis Geiser, et al., at 9.  “Because of the painful effects of the drug, use of potassium chloride on a conscious patient is ‘unacceptable’ and ‘absolutely condemned’ in humane euthanasia.” Id. at 10, quoting the AVMA Guidelines on Euthanasia (June 2007)(formerly the 2000 Report of the AVMA Panel on Euthanasia) at 12.

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