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.