Lethal medication provisions are in a precarious state. Over the past decade, pharmaceutical companies have attempted to stamp out the use of their drugs in executions, creating several economic and regulatory hurdles for access to these medications. As a result, patients seeking physician-assisted suicide (PAS) as well as death penalty states aiming to execute their capital offenders have been forced to turn to unregulated and dangerous alternatives for these drugs. This note attempts to unpack the quality, safety, and access issues emerging from these recent changes and to explore the implications for the future of these practices.
In order to fully grasp the exact mechanisms at work, this note will first offer a brief pharmacological description of the lethal medications and detail many technical aspects of their use. The next section provides a historical account of the past decade, illustrating the emergent quality, safety, and access issues. This note then evaluates the competing notions of ‘botched’ executions and ‘complications’ in PAS while analysing the standards set forward to measure safety and efficacy for each. Finally, this note closes by exploring the future of each practice in light of our discussion.
II. LETHAL MEDICATIONS
Though poisons have long been used for lethal practices, be it punishment or suicide, the modern era of lethal medication provisions began with the development of lethal injection as a means of execution by Oklahoma in the late 1970s. Conceived by the state’s medical examiner, Jay Chapman, the original protocol consisted of three drugs: the first, sodium thiopental, serves as an anesthetic, administered before any other drugs to ensure the patient is unconscious; the second drug, pancuronium bromide, works as a paralytic agent that disables a patient’s ability to control the lungs, often suffocating them; and the third drug, potassium chloride causes rapid cardiac arrest.1 This method was first implemented in 1982 by the Texas Department of Criminal Justice, and its exact protocol has been replicated in all 929 executions via lethal injections in the country until 2007.2
Most lethal injection protocols have followed this three-drug order and layout. The first drug guarantees that the condemned do not suffer any pain as a result of the preceding drugs. Potassium chloride is known to be excruciating as it travels through the veins on its way to stopping the heart. Pancuronium bromide, while not explicitly painful itself, has the potential to instill a sense of suffocation via paralysis. Critics claim that the condemned potentially may be awake, but would have no way to communicate that they were, or that they were in pain.
States have responded to this and other challenges with a variety of changes in policy. Some mandate physician participation, specifically requiring them to check for consciousness in between the first and second drugs. Given near-unanimous opposition from the medical community, this has neutered many states attempts to execute; California has been unable to find willing physician’s to participate for over a decade. Additionally, several states have switched to one-drug protocols, where only the first drug is administered, but in significantly higher doses.3 There is, again, much criticism as to the physiological response to such doses, as little is known about the effects. Others have tried new drugs: as of September 2017, over 18 different drugs have been proposed or authorized, and of these, at least 10 have been used.4 Many of these are detailed in Table 1.
Meanwhile, the standard PAS protocol in the USA involves the prescription of a lethal dose of a barbiturate, typically pentobarbital or secobarbital, to be consumed by the patient in liquid form. Often, the dose is mixed with juice, in what is often called a ‘potion’, to combat the bitter taste of the drugs. The patient is legally required to drink the potion by themselves, to ensure the decision remains autonomous. Physicians are free to prescribe, off-label, any drug they deem fit for these lethal purposes, under protection from prosecution. Only three lethal medications (secobarbital, pentobarbital, and phenobarbital) have been used, according to state statistics, aside from anti-nausea and anti-anxiety medications to combat side effects.5 In the Netherlands and Belgium, physicians typically rely on sodium thiopental and pancuronium bromide when euthanizing patients at their behest.13
Most of the controversy circles around barbiturates, the primary lethal medications used. Neurologically, barbiturates essentially put patients to sleep by slowing down the brain’s electrical activity, by stimulating the gamma-amino-butyric-acid (GABA) receptors. This activates an inhibitory response, which reduces the firing of neurons. If enough of this occurs, breathing slows down and can eventually cease, leading to death. Each barbiturate varies in how fast acting and how long lasting they are, creating major differences a patient’s consciousness or pain during death.14
As recently as 2013, due to access issues, midazolam, a benzodiazepine, has supplanted barbiturates as the typical first drug. While benzodiazepines have many overlapping uses with barbiturates, they are typically prescribed as sedatives rather than as anesthetics. Midazolam facilitates the binding of the brain chemical GABA to its receptors, just like barbiturates, but to a lesser degree.15 Though midazolam is considered to be one of the stronger benzodiazepines, there is broad medical opposition to its role as a lethal medication.16