Mimesis Law
22 October 2017

Death à la Carte

February 22, 2017  (Fault Lines) — Since I handle death penalty habeas cases, I must be careful not to express opinions on the merits of pending or impending cases involving the death penalty. While I discuss a recent development proposed by Arizona on a “cocktail” that might be used to execute prisoners, I do not express any legal opinion on that specific cocktail (or related regulations) for the purpose of carrying out the death penalty.

On the contrary, I write solely about the humanity, or perhaps the lack thereof, of Arizona offering a condemned person the right to elect to die by pentobarbital injection rather than other drug concoctions.* Effective January 11, 2017, and as hereinafter hyperlinked, Arizona has promulgated a new execution protocol.

Among other things, the new regulations provide:

If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical pentobarbital in sufficient quantity and quality to successfully implement the one-drug protocol with pentobarbital set forth in Chart A, then the Director shall use the one-drug protocol with pentobarbital set forth in Chart A as the drug protocol for execution.

Id. ATTACHMENT DEPARTMENT ORDER 710, at Page 2 of 10.

Chart A, referred to above, provides for four injections. The first is 20ml sterile saline solution. The second calls for an injection of 2.5 gm of pentobarbital. The third calls for an injection of 2.5 gm of pentobarbital. The final injection calls for an injection of 20ml of sterile saline solution. Id.

For those of us, like me, who don’t know much about pentobarbital, I quickly recognized the trade-name for the drug, that is, Nembutal. Pentobarbital is a sedative. It may also be used to treat tension, anxiety, nervousness, and trouble falling asleep (insomnia). It can help patients relax before surgery or medical procedures. In addition, it can treat epilepsy and other seizures. The lethal injection** dosage is thought to be between 2–5 grams.

As I understand it, in the death penalty context, the primary mechanism of death results from the sedation that causes a cessation of respiratory and cardiac function. Indeed, a vial containing Nembutal was found in Marilyn Monroe’s bedroom shortly after her death. It was empty.

My essential question is unrelated to the law, justice, medical ethics or religion. Assume for a moment that the use of Arizona’s one-cocktail pentobarbital regime works roughly as intended. Isn’t Arizona being humane in offering the prisoner the choice?

Before you answer the question, consider the irony that the drug (pentobarbital) is used and sought after by “Death with Dignity” folks despite many hurdles put in their way. See Kimberly Leonard, Drug Used in ‘Death with Dignity’ Is the Same Used in Executions, USNews (Oct. 16, 2015),

***

Richard G. Kopf
Senior United States District Judge (Nebraska)

*I tip my hat to Professor Doug Berman for highlighting this matter. See BYOD in Az: spotlighting Arizona’s (cheeky?) drug acquisition provision in its latest execution protocol, Sentencing Law and Policy (February 18, 2017).

**Dosage, and therefore, lethality may depend upon the method of administration.

***Extra credit will be given if one identifies the source of the phrase without looking it up on the computer. Think of London, a gentleman with a black hat and a beautiful woman.

7 Comments on this post.

Leave a Reply

*

*

Comments for Fault Lines posts are closed here. You can leave comments for this post at the new site, faultlines.us

  • Jeff Gamso
    22 February 2017 at 10:05 am - Reply

    Before answering, it’s important to be clear about the “choice.” It’s not between execution by pentobarbital and by three-drug sequence (I reject the term “cocktail” which is both inaccurate – in theory there’s no mixing of the drugs, neither shaken nor stirred – and trivializing). It’s between no execution unless the state turns up enough drugs for one of the execution methods and providing the state with the drugs. Another way of looking at it is that it’s a choice between being a victim of a homicide and dying by state-assisted suicide.

    Aside from the fact that neither the inmate nor counsel can legally acquire and provide the drugs (which makes the “choice” illusory), I don’t see anything humane in saying that the condemned person can have an assisted suicide by state approved means but cannot otherwise take his or her own life or can be killed by an execution team without his or her assistance.

    Is there a “humane” way to arrange executions? A competently (too rare an event, it seems) administered single massive dose of pentobarbital would likely be painless. The state could simply require that. Law prof Debbie Denno, who’s studied the issue for years suggests the firing squad is the closest to guaranteeing a quick and painless death.

    Would that be “humane”?

    In “Reflections on the Guillotine,” Camus wrote:

    “What then is capital punishment but the most premeditated of murders, to which no criminal’s deed, however calculated it may be, can be compared? For there to be an equivalence, the death penalty would have to punish a criminal, who had warned his victim of the date at which he would inflict a horrible death on him, and who from that moment onward had confined him at his mercy for months. Such a monster is not encountered in private life.”

    Of course, he’s wrong. Such monsters are encountered in private life. But that’s hardly the measure of what’s “humane.”

  • JohnM
    22 February 2017 at 10:26 am - Reply

    I guess I’m not understanding the basis of the current state of affairs: Is this a situation where the other methods don’t work reliably or quickly, but pentobarbital does?

    If that’s that’s the baseline, then I guess it’s as humane as offering to shoot someone in the head (quick) or the gut (slow).

    However, this regulation adds another layer to the choice: you need to procure the bullet (expensive? hard to procure?) for the head shot, and if you can’t it’s back to the gut for you.

    Uggh.

    This is a horrible metaphor, but it’s the one that seems relevant to me: A man should shoot his own horse. If the State wants to put someone down, then it should do so – on its own dime, and without torturing the person it wants to kill.

    As I typed this, I realized the concept of “torture” could be spread across the entire process, which I imagine is one of the thoughts that led to the right for speedy trial, jury of peers, etc. IMNAL (obviously).

  • SPM
    22 February 2017 at 11:37 am - Reply

    There are so many paradoxes involved:

    1) Arguments from the ACLU that “no sane person” can reasonably request death – in arguing for appeals to continue in death penalty cases even over the objections of the defendant. At the same time arguing that there is no reason to doubt the mental capacity of someone who requests “euthanasia.” (You can flip those around equally well if you prefer.)

    2) There is a saying in Emergency Medicine that “scumbags” never die but “ordinary, decent” people will die at the drop of a hat. It is well known that if a perfectly nice, 40 yo first-grade teacher with 4 kids shows up in the ED with hip pain, that she necessarily has metastatic bone cancer and will be dead in 6 months. On the other hand, the registered sex offender, alcoholic, drug abuser, can get shot, hit by a train, catch fire in the ambulance, and walk out of the hospital in 3 days. More specifically, it is amazing that people can drop dead from a bit of oxycodone or heroin, and yet they put 50 times the lethal dose of a medicine into someone the state is trying to kill and they won’t die. At least right away. Make of that what you will.

    3) I am old enough to have had anesthesia induced by pentobarbital. One of its properties is retrograde amnesia. That, combined with the fact that it works so fast, means you do not remember it being administered. Which raises a philosophical question, if you cannot “remember” pain, did it actually happen? It deeply offends my sense of self that I know there were times that I was necessarily perfectly conscious, but do not remember any of it (due to surgical anesthesia).

    And probably many more…

  • Anon
    22 February 2017 at 1:12 pm - Reply
  • Richard G. Kopf
    22 February 2017 at 3:09 pm - Reply

    To All including Jeff and SPM,

    I always appreciate comments and typically respond to them. For personal reasons, I think it best that I forego responding to comments on this post. No disrespect is intended. I will read and think about every comment.

    All the best.

    Rich Kopf

    • Jeff Gamso
      22 February 2017 at 3:17 pm - Reply

      Probably the right call, Your Honor.

  • Wrongway
    23 February 2017 at 2:03 am - Reply

    Hiya Judge .. (keep yer ski’s waxed up yonder !!)

    I really really hate it when you make me think..

    Whats even worse than that you ask ?

    When the people who comment make great opinions/arguments ..

    And now I’m thinking again..

    And thats why I love this forum.. I only wish it happened more..