The lethal injection quandary: How medicine has dismantled the death penalty

Fordham Law Review

Volumn 76, Issue 1, 2007, Pages 49-128

  Denno, Deborah W ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

INTRAVENOUS ANESTHETIC AGENT;

ANIMAL; ANIMAL EUTHANASIA; ARTICLE; DOCTOR PATIENT RELATION; HISTORY; HUMAN; INJECTION; LEGAL ASPECT; MEDICAL ETHICS; MEDICAL SOCIETY; METHODOLOGY; PHYSICIAN ATTITUDE; PRISONER; PUNISHMENT; UNITED STATES;

AMERICAN MEDICAL ASSOCIATION; ANESTHETICS, INTRAVENOUS; ANIMALS; CAPITAL PUNISHMENT; ETHICS, MEDICAL; EUTHANASIA, ANIMAL; HISTORY, 20TH CENTURY; HUMANS; INJECTIONS; PHYSICIAN'S ROLE; PHYSICIAN-PATIENT RELATIONS; PRISONERS; UNITED STATES;

EID: 36049029129     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (502)

1. See Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006), aff'd per curiam, 438 F.3d 926 (9th Cir. 2006), cert. denied, 546 U.S. 1163 (2006).
2. See infra Part IV.
3. Morales, 415 F. Supp. 2d at 1047; see also Morales v. Hickman, No. 5:06-cv-00219-JF, slip op. at 1, 2 (N.D. Cal. Feb. 16, 2006) (giving mention to anesthesiologists specifically).
4. Morales, 415 F. Supp. 2d at 1045. The Morales court refers to execution problems "in at least six out of thirteen executions by lethal injection in California." Id. However, two of those thirteen executions were conducted by lethal gas, not by lethal injection. See Morales v. Tilton, 465 F. Supp. 2d 972, 975 n.3 (N.D. Cal. 2006) ("In fact, there have been only eleven executions by lethal injection in California . . . .").
5. Morales, 415 F. Supp. 2d at 1039 (quoting Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004)). The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const, amend. VIII.
6. Morales v. Hickman, No. C-06-219-JF, slip op. at 1-2 (N.D. Cal. Feb. 21, 2006) (order on defendant's motion to proceed with execution under alternative condition to order denying preliminary injunction).
7. Atul Gawande, When Law and Ethics Collide: Why Physicians Participate in Executions, 354 New Eng. J. Med. 1221, 1221 (2006). A key ethical aspect of this topic is to what extent lethal injection constitutes a "medical procedure" and violates the Hippocratic Oath to which medical students swear upon graduation. See Nova Online, Hippocratic Oath - Modern Version, http://www.pbs.org/wgbh/nova/doctors/oath_modern.html (last visited Sept. 23, 2007) (crediting Louis Lasagna, academic dean of the School of Medicine at Tufts University, with writing the current version of the oath in 1964). 8. See Press Release, Priscilla Ray, Chair, Am. Med. Ass'n Council on Ethical and Judicial Affairs, AMA Opposes Physician Involvement in Executions (Feb. 17, 2006), http://www.ama-assn.org/ama/pub/category/16007.html. The press release reiterated the American Medical Association's opposition to doctor participation in lethal injections and criticized the ruling of Judge Jeremy Fogel in the Morales case. See id.
8. See Dorsey Griffith, Execution Doctors an Ethics Issue, Sacramento Bee, Feb. 17, 2006, at A3; Valerie Reitman, Doctors Wary of Crossing Line, L.A. Times, Feb. 22, 2006, at A14.
9. See Press Release, Calif. Med. Ass'n, California Medical Assn. Objects to Physician Participation in Executions (Feb. 16, 2006), available at http://www.cmanet.org/publicdoc.cfm?article_id=351&docid= 2&parent=1&templateinc=pre sssection2&all=yes (emphasizing, in response to Judge Fogel's ruling, that the California Medical Association "has for decades sought to end physician participation in capital punishment").
10. See Morales v. Tilton, 465 F. Supp. 2d 972, 976 (N.D. Cal. 2006); Morales v. Hickman, No. C-06-219-JF, slip op. at 2 (N.D. Cal. Feb. 21, 2006) (order on defendant's motion to proceed with execution under alternative condition to order denying preliminary injunction).
11. See Morales, 465 F. Supp. 2d at 976 (noting that "for reasons that remain somewhat unclear, there was a'disconnect between the expectations articulated in the orders of this Court and the Court of Appeals and the expectations of the anesthesiologists' regarding how they would participate in Plaintiffs execution" and explaining further that "Defendants apparently had told the anesthesiologists that the anesthesiologists merely would have to observe the execution, while Defendants' counsel represented to the Court that the anesthesiologists would ensure that Plaintiff would remain unconscious after he was injected with sodium thiopental" (quoting in part Morales v. Hickman, No. C-06-219-JF, slip op. at 3 (N.D. Cal. Feb. 21, 2006) (order on defendant's motion to proceed with execution under alternative condition to order denying preliminary injunction))).
12. See Morales, 465 F. Supp. 2d at 976; see also Morales v. Hickman, 438 F.3d 926, 931 (9th Cir. 2006), cert. denied, 546 U.S. 1163 (2006). In response to Morales's concerns that the role of the anesthesiologists was "uncertain" and that the state had not specified whether the execution chamber's anesthesiologist would do more "than to monitor Mr. Morales' level of unconsciousness," Morales, 438 F.3d at 930, the U.S. Court of Appeals for the Ninth Circuit clarified as follows: [I]f the anesthesiologists are unable to ensure that Morales "is [or] remains unconscious," we construe the order as clearly contemplating that they have the authority to take "all medically appropriate steps"-either alone or in conjunction with the injection team - to immediately place or return Morales into an unconscious state or to otherwise alleviate the painful effects of either or both the pancuronium bromide or potassium chloride. We also construe the "take all medically appropriate steps" language to require that the anesthesiologists have available the medical supplies and medications a board-certified anesthesiologist would deem necessary to carry out his or her responsibilities to "ensure" Morales is and remains unconscious. Id. at 931 (citing Morales v. Hickman, No. C-06-219-JF, slip op. at 1, 2 (N.D. Cal. Feb. 16, 2006) (final order re: defendants' compliance with conditions; order denying plaintiffs motions for discovery of information and for reconsideration)).
13. At the same time, doctors do participate, albeit not publicly. For a discussion of the complex nature and extent of physician participation in executions, see infra Part II.
14. Judge Fogel acknowledged his uncommon degree of involvement. See Morales, 465 F. Supp. 2d at 975 ("It is hoped that the remedy . . . will be a one-time event; . . . the particulars of California's lethal-injection protocol are and should remain the province of the State's executive branch."). For a discussion of legislative changes in execution methods over time, see generally Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us, 63 Ohio St. L.J. 63 (2002) [hereinafter Denno, When Legislatures Delegate]; Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. 319 (1997) [hereinafter Denno, Getting to Death]; Deborah W. Denno, Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death over the Century, 35 Wm. & Mary L. Rev. 551 (1994) [hereinafter Denno, Electrocution].
15. See Morales, 465 F. Supp. 2d at 974 (noting that "the Court has undertaken a thorough review of every aspect of the protocol . . . [and] has reviewed a mountain of documents ... [as well as] conducted five days of formal hearings, including a day at San Quentin State Prison that involved a detailed examination of the execution chamber and related facilities").
16. See Denno, When Legislatures Delegate, supra note 15, at 69. Currently, the United States has available five different types of execution methods: hanging, firing squad, electrocution, lethal gas, and lethal injection. See id.
17. Morales, 465 F. Supp. 2d at 981. For a detailed examination of the earlier stages of Morales, see Ellen Kreitzberg & David Richter, But Can It Be Fixed? A Look at Constitutional Challenges to Lethal Injection Executions, 47 Santa Clara L. Rev. 445 (2007).
18. Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035, at *8 (W.D. Mo. June 26, 2006) ("determining] that Missouri's current method of administering lethal injections subjects condemned inmates to an unacceptable risk of suffering unconstitutional pain and suffering"), rev'd, 487 F.3d 1072, 1085 (8th Cir. 2007) (reversing the district court's holding that the state's revised protocol violated the Eighth Amendment). Predictably, Taylor's lawyers have appealed to the U.S. Supreme Court. See infra note 417 and accompanying text.
19. Harbison v. Little, No. 3:06-01206, slip op. at 55-56 (M.D. Term. Sept. 19, 2007) ("[T]he court finds that the plaintiffs pending execution under Tennessee's new lethal injection protocol violates the Eighth Amendment .... The new protocol presents a substantial risk of unnecessary pain . . . .").
20. See infra Part IV; see also Vesna Jaksic, Death Penalty Challenges Build: Eleven States React to Bad Convictions, Botched Executions, Nat'l L.J., Mar. 5, 2007, at 1 (noting that "[a] perfect storm of problematic executions, wrongful convictions and recent court rulings against the practice of lethal injection has led a growing number of states to challenge the death penalty through lawsuits and legislative action").
21. See Report of Lethal Injection Protocol Review, Morales v. Tilton, No. C 06-219 JR RS (N.D. Cal. May 15, 2007) (submitting State of Cal., Lethal Injection Protocol Review (May 15, 2007)); San Quentin Operational Procedure 0-770 (Revised May 15, 2007), Morales, No. C 06-219 JR RS (submitting State of Cal., San Quentin Operational Procedure Number 0-770 Execution by Lethal Injection (Revised May 15, 2007)). For a critique of the new protocol, see Third Amended Complaint for Equitable and Injunctive Relief [42 U.S.C. § 1983], Morales, No. C 06-219 JR RS (N.D. Cal. July 2, 2007), and see Henry Weinstein, New Execution Protocol Proposed, L.A. Times, May 16, 2007, at B1 (noting the state's assurance that the new lethal injection protocol will be constitutional).
22. See Third Amended Complaint for Equitable and Injunctive Relief [42 U.S.C. § 1983], supra note 22, at 14 (criticizing the May 15, 2007, version of California's protocol, Procedure 770, as being "even more ill-conceived and deficient than the older versions"). 24. See Henry Weinstein, Hearing on State's Lethal Injection Protocol Delayed, L.A. Times, Sept. 15, 2007, at B6 (noting that Judge Fogel moved the scheduled hearings on the new protocol from October 1, 2007, to December 10 and 11, 2007, thereby "making it highly likely that a court-ordered moratorium on executions in California will stretch to at least two years").
23. In addition to California, those states were Florida, Georgia, South Dakota, Tennessee, and Washington. See State of Cal., San Quentin Operational Procedure Number 0-770 Execution by Lethal Injection (Revised May 15, 2007); Fla. Dep't of Corr., Execution by Lethal Injection Procedures (July 31, 2007); Fla. Dep't of Corr., Execution by Lethal Injection Procedures (May 9, 2007); Ga. Dep't of Corr., Lethal Injection Procedure (June 7, 2007); S.D. Dep't of Corr., Policy 1.3.D.3: Execution of an Inmate (June 8, 2007) (effective July 1, 2007); Tenn. Dep't of Corr., Execution Procedures for Lethal Injection (Apr. 30, 2007); State of Wash., Dep't of Corr., Capital Punishment, DOC 490.200 (June 21, 2007). Earlier in 2007, North Carolina had also adopted a new protocol. See Conner v. N.C. Council of State, No. 07 Gov 0238, slip op. at 8-11 (N.C. Office of Admin. Hearings Aug. 9, 2007).
24. See infra notes 444-52 and accompanying text; see also Fla. Dep't of Corr., Execution by Lethal Injection Procedures (July 31, 2007); Fla. Dep't of Corr., Execution by Lethal Injection Procedures (May 9, 2007). The second revised protocol attempted to add more specific qualifications for execution procedures after Judge Carven D. Angel's comments in State v. Lightbourne. See Transcript of Proceedings at 4-27, State v. Lightbourne, No. 42-1981-CF-170 (Fla. Cir. Ct. July 22, 2007) (on file with author) (entering from the bench a temporary stay of execution and commenting on the additional information needed to make Florida's execution procedures constitutional). The July 31, 2007, protocol replaced the May 9, 2007, protocol, which was not applied in any execution. On September 10, 2007, Judge Angel lifted the stay of execution upon finding Florida's protocol constitutional. State v. Lightbourne, Nos. 1981-170 CF, SC06-2391, slip op. at 5 (Fla. Cir. Ct. Sept. 10, 2007).
25. Harbison v. Little, No. 3:06-01206, slip op. at 55-56 (M.D. Tenn. Sept. 19, 2007); see also supra note 20 and accompanying text.
26. See infra Part III.
27. See Denno, When Legislatures Delegate, supra note 15, at 98.
28. See Morales v. Tilton, 465 F. Supp. 2d 972, 978 & n.6 (N.D. Cal. 2006).
29. See id.
30. See id. at 980. For further discussion of the pain and suffering created by the lethal injection drugs, see Denno, When Legislatures Delegate, supra note 15, at 97-112, and Denno, Getting to Death, supra note 15, at 379-85.
31. See Morales, 465 F. Supp. 2d at 979; see also id. at 981 ("Defendants' actions and failures to act have resulted in an undue and unnecessary risk of an Eighth Amendment violation. This is intolerable under the Constitution.").
32. Id. at 979.
33. Id.
34. Id.
35. Id. at 980.
36. See Baze v. Rees, No. 04-CI-1094, slip op. at 8 (Ky. Cir. Ct. July 8, 2005), aff'd, 217 S.W.3d 207 (Ky. 2006), reh'g denied, No. 2005-SC-000543-MR, 2007 Ky. LEXIS 98 (Ky. Apr. 19, 2007), cert. granted, No. 07-5439, 2007 U.S. LEXIS 9066 (U.S. Sept. 25, 2007), amended, No. 07-5439, 2007 U.S. LEXIS 11115 (U.S. Oct. 3, 2007) ("The petition for a writ of certiorari is granted limited to Questions 1, 2, and 3 presented by the petition."); see also Petition for a Writ of Certiorari, Baze, 2007 U.S. LEXIS 9066 (No. 07-5439); Deborah W. Denno, Death Bed, 124 TriQuarterly 141, 162 (2006) (discussing Baze).
37. See supra note 19 (discussing the procedural history and current status of Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035, at *6 (W.D. Mo. June 26, 2006), rev'd, 487 F.3d 1072 (8th Cir. 2007)). For an excellent discussion of Taylor and its ramifications, see Ellyde Roko, Note, Executioner Identities: Toward Recognizing a Right to Know Who Is Hiding Beneath the Hood, 75 Fordham L. Rev. 2791, 2791 (2007).
38. For an account of the May 2007 execution of Christopher J. Newton, see Alan Johnson, Prisoner Executed After IV Lines Cause Delay, Columbus Dispatch (Ohio), May 25, 2007, at B1. During his execution process, Newton at one point laughed at the executioners when he was allowed to get up to use the restroom because it took them more than an hour to insert an intravenous line. See id. Witnesses later said Newton had turned blue as his chest heaved after the execution team finally injected the lethal chemicals. See Alan Johnson, ACLU Seeks Execution Records; Inmate Suffocated, Doctor Says, Columbus Dispatch (Ohio), June 1, 2007, at B5. For an account of the May 2006 execution of Joseph Clark, see infra notes 336-38 and accompanying text. Family members of Joseph Clark filed a federal lawsuit for damages in the amount of $150,000 against the state of Ohio, alleging inadequate training and supervision and deliberate indifference to a "substantial risk of a problematic execution." See Complaint and Jury Demand at 8, Estate of Joseph Lewis Clark v. Voorhies, No. 07 CV 510 (S.D. Ohio July 2, 2007). For an interesting argument concerning the applicability of tort doctrine to botched executions, see Julian Davis Mortenson, Earning the Right to Be Retributive: Execution Methods, Culpability Theory, and the Cruel and Unusual Punishment Clause, 88 Iowa L. Rev. 1099, 1106 (2003) (stating that when the government selects a particular method of execution while aware that some executed inmates will experience pain and suffering as a result, then "the responsible state actors can properly be charged with committing a reckless or knowing - and perhaps even an intentional - tort when a botched execution actually occurs" and explaining that "this 'new' understanding of botched executions is actually no more than a common-sense application of longstanding Eighth Amendment doctrine in the prison conditions context").
39. See Andrea Weigl, Doc's Execution Role: 'Be Present,' News & Observer (Raleigh, N.C.), Mar. 30, 2007, at 1A.
40. See Governor's Comm'n on Admin, of Lethal Injection, Final Report with Findings and Recommendations 8 (2007) [hereinafter Florida Commission Report]; supra note 25-26 and accompanying text (discussing Florida's two revised protocols); see also Marc Caputo, Crist Signs First Warrant to Resume Executions, Miami Herald, July 19, 2007, at 6B (discussing Florida Governor Charlie Crist's signing of a death warrant to resume executions in Florida). From May to July 2007, the state held an evidentiary hearing concerning how lethal injections were conducted in Florida. See Transcript of Proceedings, State v. Lightbourne, No. 42-1981-CF-170 (Fla. Cir. Ct. May 18-July 22, 2007). As a result, Judge Angel stopped the lethal injection process, questioning numerous aspects of how the state conducts executions. Excerpt from Transcript of Proceedings at 4-27, State v. Lightbourne, No. 42-1981-CF-170 (Fla. Cir. Ct. July 22, 2007) (on file with author) (issuing a ruling from the bench staying Lightbourne's execution after raising concerns about the qualifications of executioners). Judge Angel focused particularly on the age qualifications of the state's executioner, who need only be eighteen years of age. In Florida, an executioner is defined as "a person 18 years of age or older, who is selected by the warden to initiate the flow of lethal chemicals into the inmate." Fla. Dep't of Corr., Execution by Lethal Injection Procedures (May 9, 2007). As the judge explained, I don't think that any 18-year-old executioner with the pressure of a governor's warrant behind him to carry out an execution, and with the pressure of the whole world, the press and the whole world, in front of him and looking at him, is going to have enough experience and competence to stop an execution when it needs to be stopped. I just don't think that's going to happen. Excerpt from Transcript of Proceedings at 4, State v. Lightbourne, No. 42-1981-CF-170 (Fla. Cir. Ct. July 22, 2007) (on file with author). On September 10, 2007, however, Judge Angel lifted the stay of execution upon finding Florida's protocol constitutional. State v. Lightbourne, Nos. 1981-170 CF, SC06-2391, slip op. at 5 (Fla. Cir. Ct. Sept. 10, 2007); see also supra note 26 and accompanying text (discussing Florida's recent lethal injection litigation).
41. Kevin Pagan, Eyewitness: Prisoner Did Not Die Meekly, Quietly, S.F. Chron., Dec. 14, 2005, at A12.
42. See infra Part IV.
43. Message from Orin F. Guidry, M.D., President, Am. Soc'y of Anesthesiologists, Observations Regarding Lethal Injection (June 30, 2006), available at http://www.asahq.org/news/asanews063006.htm.
44. Id.
45. Id.
46. Morales v. Tilton, 465 F. Supp. 2d 972, 974 (N.D. Cal. 2006).
47. See infra Part II.
48. See Ariz. Rev. Stat. Ann. § 13-704 (2006); Ark. Code Ann. § 5-4-617 (2006); Colo. Rev. Stat. Ann. § 18-1.3-1202 (West 2006); Conn. Gen. Stat. Ann. § 54-100 (West 2007); Del. Code Ann. tit. 11, § 4209 (2007); Ga. Code Ann. § 17-10-38 (2006); 725 111. Comp. Stat. Ann. 5/119-5 (West 2006); Ind. Code Ann. § 35-38-6-1 (West 2006); Kan. Stat. Ann. § 22-4001 (2006); Ky. Rev. Stat. Ann. § 431.220 (West 2006); La. Rev. Stat. Ann. § 15:569 (2006); Md. Code Ann., Crim. Law § 2-303 (West 2006); Miss. Code Ann. § 99-19-51 (2006); Mont. Code Ann. § 46-19-103 (2005); Nev. Rev. Stat. Ann. § 176.355 (West 2006); N.J. Stat. Ann. § 2C:49-2 (West 2007); N.M. Stat. § 31-14-11 (2006); N.C. Gen. Stat. Ann. § 15-187 (West 2006); Ohio Rev. Code Ann. § 2949.22 (West 2007); Okla. Stat. Ann. tit. 22, § 1014 (West 2006); Or. Rev. Stat. § 137.473 (2005); 61 Pa. Stat. Ann. § 3004 (West 2006); S.D. Codified Laws § 23A-27A-32 (2006) (amended 2007); Tenn. Code Ann. § 40-23-114 (West 2006); Tex. Code Crim. Proc. Ann. art. 43.14 (Vernon 2006); Utah Code Ann. § 77-18-5.5 (West 2006); Wyo. Stat. Ann. § 7-13-904 (2006). The New York Court of Appeals held the state's death penalty statute unconstitutional in 2004, preventing executions. See People v. LaValle, 817 N.E.2d 341, 367 (N.Y. 2004). However, the chosen method of execution in New York remains lethal injection. N.Y. Correct. Law § 658 (McKinney 2003).
49. These nine states are divided according to the alternative execution method they allow apart from lethal injection. Alabama, Florida, South Carolina, and Virginia allow for electrocution. See Ala. Code §§ 15-18-82 to 82.1 (2007); Fla. Stat. Ann. § 922.105 (West 2007); S.C. Code Ann. § 24-3-530 (2006); Va. Code Ann. § 53.1-234 (West 2006). New Hampshire and Washington also have hanging as a method. See N.H. Rev. Stat. Ann. § 630:5 (2006); Wash. Rev. Code Ann. § 10.95.180 (West 2007). California and Missouri both have lethal gas as an alternative. See Cal. Penal Code § 3604 (West 2007); Mo. Ann. Stat. § 546.720 (West 2006). Idaho provides for execution by firing squad. See Idaho Code Ann. § 19-2716 (2006). This footnote does not include statutes designating a choice only if an inmate was sentenced before a certain date, or any of the other myriad variations in statutes that have been documented in detail elsewhere. See Denno, When Legislatures Delegate, supra note 15, at 188-206.
50. See Neb. Rev. Stat. § 29-2532 (2006).
51. Executions in the United States have decreased from a high of ninety-eight in 1999. See Tracy L. Snell, Bureau of Justice Statistics, Bureau of Justice Statistics Bull., No. NCJ 215083, Capital Punishment 9 (2005), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/cp05.pdf. In 2006, states executed fifty-three people, fifty-two by lethal injection and one by electrocution. See U.S. Dep't of Justice, Capital Punishment Statistics: Summary Findings, http://www.ojp.usdoj.gov/bjs/cp.htm (last visited Aug. 31, 2007). Fourteen states executed condemned inmates. See id. Texas executed twenty-four inmates; Ohio executed five inmates; Florida, North Carolina, Oklahoma, and Virginia each executed four inmates; and Indiana, Alabama, Mississippi, South Carolina, California, Montana, Nevada, and Tennessee each executed one inmate. See id. 54. Illinois officially imposed a moratorium on executions in 2001. See Press Release, Governor's Office, Governor Ryan Declares Moratorium on Executions, Will Appoint Commission to Review Capital Punishment System (Jan. 31, 2000), http://www.illinois.gov/ PressReleases/ShowPressRelease.cfm?SubjectID=3&RecNum=359. New Jersey lifted a three-month-long moratorium in March 2007, but executions still are on hold in the state after a state court declined to approve the state's revised protocol. See In re Readoption of N.J.A.C. 10A:23, 842 A.2d 207 (N.J. Super. Ct. App. Div. 2004); see also Jeff Whelan, Christie Seeks Federal Death Penalty in Newark Slaying, Star-Ledger (Newark, N.J.), Apr. 4, 2007, at 18. Federal district courts in California and Missouri held execution protocols unconstitutional in 2006. See Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006); Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035, at *8 (W.D. Mo. June 26, 2006), rev'd, 487 F.3d 1072 (8th Cir. 2007). The U.S. Court of Appeals for the Eighth Circuit later held that Missouri's revised protocol did not violate the Eighth Amendment. See Taylor v. Crawford, 487 F.3d 1072, 1085 (8th Cir. 2007). Governors in three states, Florida, South Dakota, and Tennessee, established moratoria on executions by executive order in the 2006 to 2007 time frame. See Fla. Exec. Order No. 06-260 (Dec. 15, 2006), available at http://www. deathpenaltyinfo.org/FloridaExecutiveOrder.pdf (staying all executions after a botched execution); An Order Directing the Department of Correction to Complete a Comprehensive Review of the Manner in which the Death Penalty Is Administered in Tennessee, Tenn. Exec. Order No. 43 (Feb. 1, 2007), available at http://www.tennesseeanytime.org/governor/AdminCMSServlet?action=viewFile&id= 969 (placing executions on hold for ninety days); Press Release, S.D. Governor's Office, Gov. Rounds Issues Statement on the Stay of Execution for Elijah Page (Aug. 29, 2006), http://www.state.sd.us/news/printDoc.aspx?i=7722. All three states subsequently enacted new protocols. See Fla. Dep't of Corr., Execution by Lethal Injection Procedures (July 31, 2007); S.D. Dep't of Corr., Policy 1.3.D.3: Execution of an Inmate (June 8, 2007) (effective July 1, 2007); Tenn. Dep't of Corr., Execution Procedures for Lethal Injection (Apr. 30, 2007). Both Tennessee and South Dakota executed inmates in 2007. See Tenn. Dep't of Corr., Tennessee Executions, http://www.state.tn.us/correction/ newsreleases/tnexecutions.htm (last visited Aug. 31, 2007) (documenting the May 9, 2007, execution of Phillip Workman); see also S.D. Dep't of Corr., Frequently Asked Questions: Capital Punishment, http://www.state.sd.us/ CORRECTIONS/FAQ_Capital_Punishment.htm (last visited Aug. 31, 2007) (documenting the execution of Elijah Page on July 11, 2007). At the same time, the respective constitutional statuses of the lethal injection protocols in Florida and Tennessee changed in September 2007. On September 10, a court lifted a temporary stay of execution in Florida upon determining that Florida's protocol did not violate the Eighth Amendment. State v. Lightbourne, Nos. 1981-170 CF, SC06-2391, slip op. at 5 (Fla. Cir. Ct. Sept. 10, 2007). In contrast, on September 19, a court determined that "Tennessee's new lethal injection protocol violates the Eighth Amendment." Harbison v. Little, No. 3:06-01206, slip op. at 55 (M.D. Tenn. Sept. 19, 2007). Courts in four other states, Arkansas, Delaware, Maryland, and North Carolina, have stayed executions and have not had a subsequent execution. See Nooner v. Norris, No. 5:06CV00110 SSW (E.D. Ark. June 26, 2006); Jackson v. Taylor, No. Civ. 06-300-SLR, 2006 WL 1237044 (D. Del. May 9, 2006); Evans v. State, 914 A.2d 25 (Md. 2006); Robinson v. Beck, No. 07 CVS 001109 (N.C. Super. Ct. Jan. 25, 2007). Federal executions also have ceased during the pendency of a challenge to the lethal injection protocol. Roane v. Gonzales, No. 05-2337 (RWR/DAR) (D.D.C. Feb. 24, 2006).
52. Numerous states had legislation pending during the 2006 to 2007 session to abolish the death penalty. See, e.g., H.B. 2278, 48th Leg., 1st Reg. Sess. (Ariz. 2007); H.B. 07-1094, 66th Gen. Assem., Reg. Sess. (Colo. 2007); S.B. 328, 95th Gen. Assem., Reg. Sess. (Ill. 2007); S.B. 222, 82d Leg., Reg. Sess. (Kan. 2007); H.B. 200, 2007 Gen. Assem., Reg. Sess. (Ky. 2007); H.B. 225, 422d Gen. Assem., Reg. Sess. (Md. 2007); H.B. 216, 2007 Leg, Reg. Sess. (Miss. 2007); S.B. 354, 94th Gen. Assem., 1st Reg. Sess. (Mo. 2007); L.B. 476, 100th Leg., 1st Sess. (Neb. 2007); H.B. 607, 160th Leg., 2007 Sess. (N.H. 2007); S.B. 2471, 212th Leg., Legis. Sess. (N.J. 2007); H.B. 190, 48th Leg, 1st Sess. (N.M. 2007); A.B. 542, 230th Leg, 2007 Reg. Sess. (N.Y. 2007); H.B. 1195, 82d Legis. Assem, 2007 Sess. (S.D. 2007); H.B. 745, 80th Leg, Reg. Sess. (Tex. 2007); H.B. 1960, Gen. Assem, 2007 Reg. Sess. (Va. 2007); H.B. 1518, 60th Leg, 1st Reg. Sess. (Wash. 2007).
53. Pending legislation in several states sought to impose moratoria on executions in order to study capital punishment. See, e.g., H.B. 205, 2007 Leg, Reg. Sess. (Miss. 2007); S.B. 439, 94th Gen. Assem, 1st Reg. Sess. (Mo. 2007); H.B. 809, 80th Leg, Reg. Sess. (Tex. 2007).
54. Several states considered legislation to expand the application of the death penalty. See H.B. 185, 149th Gen. Assem, Legis. Sess. (Ga. 2007); H.B. 3130, 117th Gen. Assem, 1st Reg. Sess. (S.C. 2007); H.B. 86, 57th Leg, 2007 Gen. Sess. (Utah 2007). A bill in West Virginia is attempting to reintroduce the punishment. See H.B. 2124, 78th Leg, Reg. Sess. (W. Va. 2007).
55. See generally Denno, When Legislatures Delegate, supra note 15.
56. See generally Philip English Mackey, Hanging in the Balance: The Anti-Capital Punishment Movement in New York State, 1776-1861 (1982).
57. In re Kemmler, 136 U.S. 436, 444 (1890).
58. N. Y. Comm'n on Capital Punishment, Report of the Commission to Investigate and Report the Most Humane and Practical Method of Carrying into Effect the Sentence of Death in Capital Cases (1888) [hereinafter New York Commission Report]. The commission consisted of its chair, Elbridge T. Gerry, a prominent attorney and counsel for the Society for the Prevention of Cruelty to Animals; Dr. Alfred P. Southwick, a dentist from Buffalo; and Matthew Hale, an attorney from Albany. See id.
59. See Far Worse Than Hanging, N.Y. Times, Aug. 7, 1890, at 1.
60. In re Kemmler, 136 U.S. at 446.
61. See Far Worse Than Hanging, supra note 62; see also Richard Moran, Executioner's Current: Thomas Edison, George Westinghouse, and the Invention of the Electric Chair 15-16 (2002) (discussing the Kemmler execution).
62. See Far Worse Than Hanging, supra note 62; see also Moran, supra note 64, at 15-16 (2002).
63. See Denno, Electrocution, supra note 15, at 604-06.
64. See Stuart Banner, The Death Penalty: An American History 169 (2002) (noting that fifteen states had adopted electrocution by 1913 and another eleven states used the method by 1950).
65. See generally Marian J. Borg & Michael L. Radelet, On Botched Executions, in Capital Punishment: Strategies for Abolition 143, 143-68 (Peter Hodgkinson & William A. Schabas eds., 2004).
66. See Provenzano v. Moore, 744 So. 2d 413, 44244 (Fla. 1999) (Shaw, J., dissenting); see also Denno, When Legislatures Delegate, supra note 15, at 78-79.
67. See, e.g., Millions Flock to US Execution Site, Scotsman (Edinburgh, Scot.), Nov. 1, 1999, at 22; see also Denno, When Legislatures Delegate, supra note 15, at 78-79.
68. See Fla. Stat. Ann. § 922.105 (West 2007) (providing inmates with a choice between electrocution and lethal injection).
69. See Borg & Radelet, supra note 68, at 143-68.
70. See Campbell v. Wood, 18 F.3d 662, 684-85 (9th Cir. 1994); see also Gawande, supra note 7, at 1222 ("Under the best of circumstances, the cervical spine is broken at C2, the diaphragm is paralyzed, and the prisoner suffocates to death, a minutes-long process.").
71. See Fierro v. Gomez, 77 F.3d 301, 309 (9th Cir. 1996) (finding execution by lethal gas unconstitutional).
72. Ivan Solotaroff, The Last Face You'll Ever See: The Private Life of the American Death Penalty 7 (2001).
73. See generally Christopher Cutler, Nothing Less Than the Dignity of Man: Evolving Standards, Botched Executions and Utah's Controversial Use of the Firing Squad, 50 Clev. St. L. Rev. 335, 337-98 (2002) (surveying the history and use of the firing squad in the United States). For a comparative analysis of execution methods within a medical context, see Arif Khan & Robyn M. Leventhal, Medical Aspects of Capital Punishment Executions, 47 J. Forensic Sci. 847 (2002).
74. New York Commission Report, supra note 61, at 75.
75. See Denno, Electrocution, supra note 15, at 572-73.
76. See infra Part II.
77. See Royal Commission on Capital Punishment 1949-53, Report 258, 261 (1953) [hereinafter Royal Commission Report]. For a discussion of the creation and backdrop of the Royal Commission, see Brian P. Block & John Hostettler, Hanging in the Balance 127-35 (1997); James B. Christoph, Capital Punishment and British Party Responsibility, 77 Pol. Sei. Q. 19, 26 (1962).
78. Royal Commission Report, supra note 80, at 257-61.
79. Id. at 257.
80. Id. at 258-60.
81. See id.
82. See id. at 258. The commission quoted the view of the British Medical Association: No medical practitioner should be asked to take part in bringing about the death of a convicted murderer. The Association would be most strongly opposed to any proposal to introduce, in place of judicial hanging, a method of execution which would require the services of a medical practitioner, either in carrying out the actual process of killing or in instructing others in the technique of the process. Id. (citation omitted).
83. Id. at 259.
84. See id.
85. Id. at 261.
86. See Murder (Abolition of Death Penalty) Act, 1965, c. 71 (Eng.). Consequently, there was no reason for the British to reevaluate whether lethal injection would be preferable to other methods of execution. See Franklin E. Zimring & Gordon Hawkins, Capital Punishment and the American Agenda 109 (1986).
87. See Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion).
88. See infra Part II.
89. See infra notes 132-35 and accompanying text.
90. See Denno, Getting to Death, supra note 15, at 375.
91. See infra notes 100-17 and accompanying text.
92. Bill Dawson died of a brain tumor in 1987. See Robby Trammell, Bill Dawson, 43, Dies of Cancer, Daily Oklahoman, Jan. 18, 1987, at A1.
93. The final bill listed Dawson and Wiseman among its sponsors. See An Act Relating to Criminal Procedure; Amending 22 O.S. 1971, Section 1014; and Specifying the Manner of Inflicting Punishment of Death, S.B. 10, 36th Leg., 1st Sess. (Okla. 1977). The bill passed the Oklahoma State Senate on May 3, 1977, and the Oklahoma House of Representatives on May 9, 1977. See id. Both the house and senate held conferences on the bill and issued a conference report, indicating that it was controversial. See id.
94. See Robert Moore, Doctor as Executioner: The Argument Over Death by Injection, New Physician, Sept. 1980, at 21. These thoughts were fueled further when, as a senator, Dawson received a letter from a student in his district reiterating the idea of lethal injections as a viable method for execution. See id.
95. See William J. Wiseman, Jr., Confessions of a Former Legislator, Christian Century, June 20-27, 2001, at 6; see also Tim Barker, Author of Lethal Injection Bill Recalls His Motive, Tulsa World, Sept. 7, 1990, at A1 (noting in an article featuring former Oklahoma House Representative Bill Wiseman that Wiseman turned to lethal injection in an effort to create more humane executions, particularly relative to electrocution, and that while the debates on lethal injection were occurring, Wiseman distributed to each legislator two pictures of an inmate who had been electrocuted, commenting that the scenes "'looked like seared meat,'" and that "'[s]ome people just didn't like it'").
96. See Wiseman, supra note 98, at 6; see also Vince Beiser, A Guilty Man, Mother Jones, Sept.-Oct. 2005, at 34.
97. See Beiser, supra note 99, at 37; Moore, supra note 97, at 22; Wiseman, supra note 98, at 7; E-mails from William J. Wiseman, Jr., Adm'r, Univ. of Cent. Okla., to author (Dec. 14, 2005; Jan. 17, 2006) (on file with author); Telephone Interview with William J. Wiseman, Jr., Adm'r, Univ. of Cent. Okla. (Dec. 14, 2005); see also Richard Tapscott, Drugs: A Step Toward Humane Executions?, Tulsa Trib., Feb. 8, 1977, at 1B (noting Chapman's help). Chapman was the chief medical examiner in Oklahoma from 1971 to 1982. In 1982, Chapman left his chief medical examiner position to move to California and work in private practice as a forensic pathologist for Sonoma County. See Curriculum Vitae of A. Jay Chapman (n.d.) (on file with author); Telephone Interview with A. Jay Chapman, Forensic Pathologist, Santa Rosa, Cal.; Professor of Forensic Med., Inst. of Med., Tribhuvan Univ., Maharajgunj Campus, Kathmandu, Nepal (Jan. 4, 2006); E-mail from A. Jay Chapman to author (Jan. 4, 2006) (on file with author); see also E-mail from A. Jay Chapman to author (Jan. 15, 2006) (on file with author) (noting that Chapman moved to Nepal in 1998).
98. E-mail from A. Jay Chapman, Forensic Pathologist, Santa Rosa, Cal.;
99. See Wiseman, supra note 98, at 7.
100. Id.
101. Id.; see also Tapscott, supra note 100 (explaining that Chapman "helped Wiseman draw up the language of the bill").
102. See Wiseman, supra note 98, at 7; see also E-mail from A. Jay Chapman, Forensic Pathologist, Santa Rosa, Cal.; Professor of Forensic Med., Inst. of Med., Tribhuvan Univ., Maharajgunj Campus, Kathmandu, Nepal, to author (Jan. 16, 2006) (on file with author).
103. See Wiseman, supra note 98, at 7; see also E-mail from A. Jay Chapman, supra note 105; E-mail from William J. Wiseman, Jr., Adm'r, Univ. of Cent. Okla., to author (Dec. 14, 2005) (on file with author). According to Wiseman, As I recall the meeting in my office, Dr. Chapman recommended that our statutory language be generic, which is why we said "ultra-short-acting barbiturate in combination with a chemical paralytic." At the time, again as I recall, Dr. Chapman told me that the actual agents would likely be, respectively, sodium pentiothol (sp?) and potassium chloride. Dr. Chapman thought that it would be better not to be overly specific about the actual agents to be used, so that reasonable judgments could make appropriate alterations as developments and the passage of time and experience might indicate. E-mail from William J. Wiseman, Jr., Adm'r, Univ. of Cent. Okla., to author (Dec. 14, 2005) (on file with author). According to Chapman, "As best I can remember, we were quite specific with the drugs from the beginning, but we did not specify them for legislation. We simply thought it would be better not to at the time - for what precise reasons I don't remember." E-mail from A. Jay Chapman, supra note 105.
104. Wiseman, supra note 98, at 7. In fact, however, the term "lethal injection" earlier was used by the Royal Commission in their report. Royal Commission Report, supra note 80, at 257.
105. See Wiseman, supra note 98, at 7.
106. See supra notes 83-88 and accompanying text.
107. See Simon Berlyn, Execution by the Needle, New Scientist, Sept. 15, 1977, at 676, 676-77 (explaining the problems with the combination of a fast-acting barbiturate and a chemical paralytic, specifically the "terrifying possibility . . . that if an insufficient dose of barbiturates were given in execution," along with a "large" amount of paralytic, "a conscious victim would be unable to convey an experience of intense suffering").
108. See infra Part IV.
109. Telephone Interview with William J. Wiseman, Jr., Adm'r, Univ. of Cent. Okla. (Oct. 13, 2005) (explaining that he (Wiseman) did not know that Dawson had contacted Deutsch).
110. See Denno, Getting to Death, supra note 15, at 374 n.321.
111. Telephone Interview with Stanley Deutsch, Professor of Anesthesiology (retired), George Washington Sch. of Med. (Jan. 20, 2006).
112. Letter from Stanley Deutsch, Professor of Anesthesiology, Univ. of Okla. Health Sci. Gen., to Bill Dawson, Okla. State Sen. (Feb. 28, 1977) (on file with author).
113. See id. Deutsch's letter to Dawson so closely mirrored the final wording of Oklahoma's lethal injection statute that, in hindsight, it seemed that it had served as a basic blueprint. See Denno, When Legislatures Delegate, supra note 15, at 97. Deutsch consistently has been given credit for suggesting the original lethal injection chemicals, an account that he and others justifiably encouraged; yet his true impact may have only been to confirm what Chapman initially suggested. See Telephone Interview with Lawrence D. Egbert, Visiting Professor of Anesthesiology & Critical Care Med., Johns Hopkins Univ. Sch. of Med. (Jan. 24, 2007). Regardless, in context, both doctors' recommendations were misplaced. The author's interviews and correspondence with Chapman and Deutsch indicate that the two doctors gave advice independently and that, contrary to earlier explanations and Deutsch's own personal beliefs, Deutsch probably had no actual input into the decision making because his letter was too late. See supra notes 104, 113 and accompanying text.
114. Other sources bolster this conclusion that Chapman was the major creator of lethal injection. For example, Ned Benton, the former director of the Oklahoma Department of Corrections, credited Chapman with influencing the state's adoption of lethal injection, explaining that Chapman, who "was a popular official," had given a "well received" presentation about lethal injection at a legislative hearing that Benton had attended. E-mail from F. Warren (Ned) Benton, Professor, John Jay Coll. of Criminal Justice and the Graduate Ctr., City Univ. of N.Y., to author (July 18, 2005) (on file with author). According to Benton, the recommendation for lethal injection drugs "didn't come from [Benton's then] Medical Director, Dr. Armond Start, because [Start] was opposed to the death penalty in principle and preferred not to participate in planning how it might take place." Id. (noting that, regardless, Start later took a comparable medical director post in Texas, where lethal injections were performed); see also Barbara Bolsen, Strange Bedfellows: Death Penalty and Medicine, 248 JAMA 518 (1982) (quoting Armand Start's assertion that '"there's a thousand junkies . . . who can start an IV faster than any doctors.... Just don't involve us doctors in this sordid business'"). Likewise, Fred Jordan, who was Oklahoma's assistant chief medical examiner when Oklahoma's lethal injection bill was being passed, explained that "Mr. Wiseman with the advice of Dr A. Jay Chapman, Chief Medical Examiner of Oklahoma at that time, wrote the law and moved it through the Oklahoma legislature." E-mail from Fred B. Jordan, Deputy Chief Med. Exam'r of Maine; Chief Med. Exam'r of Okla. (retired), to author (Jan. 17, 2006) (on file with author); see also Telephone Interview with Fred B. Jordan, Deputy Chief Med. Exam'r of Maine; Chief Med. Exam'r of Okla. (retired) (Jan. 17, 2006) (explaining his views on the development of lethal injection in Oklahoma). Chapman appears also to be the primary medical doctor responsible for developing the 1981 Oklahoma Department of Corrections protocol. As he explains, "I think that is correct. I probably discussed [the protocol] with Fred [Jordan] - and perhaps consulted with some anesthesiologist about it-that's how I know, as I told you - about the pancuronium and the thiopental simultaneous administration causing a problem - but it is my work." E-mail from A. Jay Chapman, supra note 101.
115. See Human Rights Watch, So Long as They Die: Lethal Injections in the United States 33 (2006). Chapman has also changed his mind on what he considers to be the proper chemicals. See Elizabeth Cohen, Lethal Injection Creator: Maybe It's Time to Change Formula, CNN.com, http://www.cnn.com/2007/HEALTH/05/07/lethal.injection/index.html (last visited Sept. 27, 2007); see also Paul Elias, Inventor Says Fault in Lethal Injection Lies in Human Error, Virginian-Pilot, May 11, 2007, at A8 (noting that Chapman "blames incompetent executioners" for the problems with lethal injection).
116. Tapscott, supra note 100. Dr. Eugene Brice, senior pastor at Tulsa Oklahoma's First Christian Church, however, offered a more accurate prediction of how the new lethal injection process and doctor involvement could unfold, "suspect[ing] problems will arise in trying to find people to administer the lethal drugs." Micki Van Deventer, Drug Death Better? Ministers Say New Method More Humane, Tulsa Trib., May 11, 1977, at IE. As Brice explained, "A qualified medical person would need to [perform a lethal injection], and I would think it would be a strain on most doctors' ethical approaches.'" Id.
117. A. Jay Chapman, Lethal Injections Not Practice of Medicine, Am. Med. News, Apr. 22-29, 1991, at 45, 45 (responding to a previous commentary by James G. Reisner, M.D., in American Medical News on February 25, 1991).
118. E-mail from A. Jay Chapman, Forensic Pathologist, Santa Rosa, Cal.; Professor of Forensic Med., Inst. of Med., Tribhuvan Univ., Maharajgunj Campus, Kathmandu, Nepal, to author (Jan. 5, 2006) (on file with author).
119. Chapman, supra note 120, at 45. As Chapman emphasized, "I grow weary of the piety of pronouncements made by groups such as the AMA Council on Ethical and Judicial Affairs. These decisions are in the province of the individual physician." Id.; see also Letter from Theodore R. Reiff, Professor of Med., Adjunct Professor of Religious Studies, Univ. of N.D., to A. Jay Chapman, Chief Med. Exam'r of Okla. (Dec. 31, 1981) (on file with author) ("You are quoted as saying that you would be willing 'to serve in any capacity' in the execution. Please let me know if you would be willing to actually inject the lethal medication."); Letter from A. Jay Chapman, Chief Med. Exam'r of Okla., to Theodore R. Reiff, Professor of Med., Adjunct Professor of Religious Studies, Univ. of N.D. (Jan. 12, 1981) (on file with author). According to Chapman, The quotation attributed to me in the [American] Medical News is correct in that I said that I would be willing to serve in any capacity in the execution. I certainly meant that to include that I would be willing to actually inject the lethal medication. I am perfectly aware that this flys [sic] in [the] face of the AMA stance concerning this matter, but I feel it is the duty of each individual physician to decide such issues. Id. (referring to Chapman, supra note 120). But see A New Executioner: The Needle, Time, Sept. 4, 1981, at 80, 80 (noting that the state of Oklahoma "concluded that the injections could be administered by non-doctors" because Dr. Armond Start, who supervised inmate health care, agreed with the American Medical Association that physicians should not participate in executions, a position "[t]hat set off acrimonious debate" and "suggestions that Start [should] resign," but which ultimately ended in Start's favor).
120. Tapscott, supra note 100. As Chapman also explained, "I guess I take the hardened view because I've performed so many autopsies on murder victims, but in these cases I think the individual, by nature of his act, has shown himself to be unable to ever function in society so society has no responsibility for him." Id.
121. See Denno, When Legislatures Delegate, supra note 15, at 90-120.
122. See John Greiner, Drug Execution Plan Suffers Senate Setback, Daily Oklahoman, Feb. 16, 1977, at 16 (explaining that one senator "apparently had drummed up enough votes to have killed the bill had it been brought to a final vote" and noting the concerns of a former assistant district attorney that "the legislature and Senate should study [the bill] more carefully").
123. See Moore, supra note 97, at 22.
124. See id.; see also Jim Killackey & Ellen Knickmeyer, Execution Called Uncivilized but Inmate 'Simply Goes to Sleep,' Lethal Drug Proponent Says, Daily Oklahoman, July 20, 1987, at 3. These developments might have prompted Dawson to contact Deutsch to acquire further medical input.
125. See An Act Relating to Criminal Procedure; Amending 22 O.S. 1971, Section 1014; and Specifying the Manner of Inflicting Punishment of Death; and Making Provisions Separable, S.B. 10, 36th Leg., 1st Sess. (Okla. 1977).
126. See John Greiner, Drug Executions Win Senate Nod, Daily Oklahoman, Mar. 3, 1977, at 1; see also Crisp Raps Use of Drugs in Executions, Daily Oklahoman, Jan. 30, 1977, at 64 (stating that State Prison Warden Richard Crisp had emphasized "that putting prisoners to death by use of pills 'shows more consideration for the killer than the killer showed for his victim'"). The Oklahoma State Senate debate was recorded but the tape of it could not be located in the Oklahoma State Archives. See Telephone Interview with Gary Harrington, Admin. Archivist, Okla. Dep't of Libraries (Apr. 5, 2007).
127. See Greiner, supra note 129.
128. Id.
129. Tapscott, supra note 100 (noting that "[t]he issue to be decided by the Legislature involves costs, ethics and philosophy").
130. See Moore, supra note 97, at 23; see also Capital Bureau, 'Merciful Members' of Legislature Engage in Gallows Humor, Daily Oklahoman, Apr. 24, 1977, at 25 (quoting Wiseman's references to the cost required to repair the state's electric chair).
131. See Greiner, supra note 129.
132. Moore, supra note 97, at 23.
133. See An Act Relating to Criminal Procedure; Amending 22 O.S. 1971, Section 1014; and Specifying the Manner of Inflicting Punishment of Death; and Making Provisions Separable, S.B. 10, 36th Leg., 1st Sess. (Okla. 1977).
134. See id.; see also Mike Hammer, Drug Death Bill Passes, Daily Oklahoman, Apr. 21, 1977, at 65; John Greiner, Senate Oks Drug Plan, Execution Bill Gains, Daily Oklahoman, May 4, 1977, at 1. According to one account of the house debates, "[g]rumbling supporters" of lethal injection complained that the electric-chair-use amendment "could delay indefinitely the imposition of death sentences"; however, they claimed at a later time that the representative offering the electric-chair amendment "agreed to change the provision radically when the bill is before a Senate-House conference committee." Richard Tapscott, Death-by-Drug Bill Passes State House, Tulsa Trib., Apr. 21, 1977, at 1A.
135. See Jim Killackey, Execution Drug Like Anesthesia, Daily Oklahoman, May 12, 1977, all.
136. Id.
137. Id.
138. Id.
139. See supra Introduction and infra Part IV.
140. Human Rights Watch, supra note 118, at 31; see also E-mail from A. Jay Chapman, Forensic Pathologist, Santa Rosa, Cal.; Professor of Forensic Med., Inst. of Med., Tribhuvan Univ., Maharajgunj Campus, Kathmandu, Nepal, to Stephen P. Slater, Dir. of Budget & Finance, Office of the Chief Med. Exam'r of Okla., with cc to author (Jan. 6, 2006) (on file with author) ("It seems there have been some very real problems with lethal injection - carried out by idiots - and we need to try to piece together the origins of this legislation.").
141. See supra notes 138-39 and accompanying text. Of course, Chapman was not the only person contributing to the hazards of lethal injection. Former State Corrections Director Ned Benton, whom The Daily Oklahoman quoted, has now said, in hindsight, he was not aware of the details of Oklahoma's lethal injection protocol because he believed that an execution in Oklahoma would not immediately take place. See E-mail from F. Warren (Ned) Benton, supra note 117 ("I did not believe that an actual execution was going to take place and my position was that we would study the matter."). Benton's explanation, however, would not be acceptable today. As the state corrections director, he was responsible for the contents of the protocol irrespective of when or even if it was ever going to be used. As current lethal injection litigation shows, this very kind of disengagement on the part of corrections personnel, particularly at Benton's senior level, has created a host of major difficulties in lethal injection executions. See infra Part IV.
142. See Jim Killackey, Officials Draw Grim Executions Lethal, Daily Oklahoman, Nov. 12, 1979, at 1; see also supra note 144 and accompanying text (discussing the views of Ned Benton concerning the perceived unlikelihood that an execution would occur in Oklahoma in the foreseeable future).
143. Killackey, supra note 145 (emphasis added).
144. Okla. Dep't of Corr., Procedures for the Execution of Inmates Sentenced to Death, No. OP-090901 (May 1, 1978) (on file with the author).
145. Killackey, supra note 145.
146. See Recommended Procedures for Execution by Lethal Drug Injection (n.d.) (on file with author) (Chapman provided the author with both a handwritten and typed version.); see also E-mail from A. Jay Chapman, Forensic Pathologist, Santa Rosa, Cal.; Professor of Forensic Med., Inst. of Med., Tribhuvan Univ., Maharajgunj Campus, Kathmandu, Nepal, to author (Jan. 15, 2006) (on file with author). According to Chapman, he was the author of the memo, Recommended Procedures for Execution by Lethal Drug Injection, which he wrote in "1981-82 - at the time of the approaching first execution by lethal injection." Id.; see also infra text of note 150 (discussing the 1981 modifications and protocol).
147. Letter from A. Jay Chapman, Chief Med. Exam'r of Okla., to Armond Start, Dep't of Corr., Okla. (June 24, 1981) (on file with author) (concerning the procedures for executions to be carried out at the state penitentiary). The letter states that not only would Chapman be the designated person to devise the details of the implemented protocol, but also that the protocol could include potassium chloride. See Killackey & Knickmeyer, supra note 127. In 1978, the department of corrections protocol indicated the following drug combinations: By law, capital punishment in Oklahoma must be carried out by means of a "continuous, intravenous administration of a lethal quantity of sodium thiopental combined with either tubocurarine, succinylcholine chloride or potassium chloride, an ultrashort-acting barbiturate combination with a chemical paralytic agent." Memorandum from F. Warren (Ned) Benton, Dir., Okla. Dep't of Corr., to Warden, Okla. State Penitentiary, Procedures for the Execution of Inmates Sentenced to Death (Apr. 12, 1978) (on file with author). In 1981, as predicted, the Oklahoma Department of Corrections made modifications to that protocol, to which Chapman contributed. In contrast to the language used in the 1978 protocol, the 1981 protocol detailed the following drug combinations and language that Chapman recommended: The execution shall be by means of a continuous, intravenous administration of a lethal quantity of sodium thiopental combined with either tubo-curarine or succinylcholine chloride and/or potassium chloride which is an ultrashort-acting barbiturate combination with a chemical paralytic agent. A designated employee of the Department will acquire a sufficient quantity of the previously named chemical agents and will maintain the security of these chemical agents until the time of execution. Memorandum from Larry R. Meachum, Dir., Okla. Dep't of Corr., Procedures for the Execution of Inmates Sentenced to Death, OP-050301 (Revised) (July 21, 1981) (on file with author).
148. Chapman has not always been clear on the reasons why all three drugs were necessary, particularly pancuronium bromide. But his rationale appears to focus on the issue of the inmate's pain, particularly within the context of the wording of the statute. As he explained: First of all, the issue about the prisoner waking up paralyzed - the law specifically states - as it was passed - that death is brought about by "continuous, intravenous administration of a lethal quantity of an ultrashot-acting [sic] barbiturate in combinations with a chemical paralytic agent. . . - Hence, if the infusion is " continuous" until death, there is not the slightest chance of the individual waking up from the effects of the thiopental or whatever agent is used. E-mail from A. Jay Chapman, supra note 121. When pressed further on why the particular combination of drugs was suggested, Chapman offered the following explanation: Obviously, it would not be necessary to use all three of the drugs. Any one of them would do the trick-even a massive overdose of the ultrashort barbiturate - as it is done with the euthanasia of animals. The pancuronium would also do it, but the effect would be delayed for the asphyxia to develop from the inability of the person to carry on respiration. Potassium chloride could be given alone as well, although it does cause pain as it travels through the vein in high concentration - which might [be] a problem for some folks, but that would not be a problem, so far as I am concerned. E-mail from A. Jay Chapman, supra note 105. When asked again about the specific use of the pancuronium bromide within the context of the two other drugs, Chapman expanded his rationale somewhat, conceding that the pancuronium bromide may not be necessary. But he also defended his drug choice based simply on how he viewed the inmate, irrespective of the purported effectiveness of the drugs. I do recommend all three [drugs]. The thiopental prevents the sensation of any pain. The thiopental and the pancuronium are given to patients undergoing surgery thousands upon thousands of times every day. The potassium chloride insures rapid death. As I pointed out, the law states a "continuous" infusion of the thiopental until death is pronounced - absolute insurance of no sensation of pain or awareness of anything. The pancuronium could well be left out. Perhaps hemlock is the answer for all the bleeding hearts who completely forget about the victims - and their suffering - Socrates style. The things that I have seen that have been done to victims is [sic] beyond belief. And we should worry that these horses' patoots should have a bit of pain, awareness of anything - give me a break. Id. Deutsch had not recommended to Dawson the use of the third drug, potassium chloride. But in an interview Deutsch expressed the opinion that the potassium chloride was a "good addition" to the chemical mixture for lethal injection because it served as a "safeguard" to ensure that the inmate would die. And potassium chloride worked more quickly. According to Deutsch, he "hadn't thought of potassium chloride" when Dawson contacted him. Telephone Interview with Stanley Deutsch, Professor of Anesthesiology (retired), George Washington Sch. of Med. (Jan. 20, 2006).
149. See infra Part III.
150. Killackey, supra note 145.
151. See Morales v. Tilton, 465 F. Supp. 2d 972, 980 (N.D. Cal. 2006).
152. See Moore, supra note 97, at 23; see also Tapscott, supra note 100. Bill Wiseman was influenced by the comparison between lethal injection and animal euthanasia, which prompted him to ask the following question: '"[H]ow many people would advocate hanging a stray dog or shooting it when it can be put to sleep with a shot.'" Id. His response was straightforward: '"All I'm saying is that if we're going to kill [the death row inmates], this [lethal injection] is the way to do it.'"Id.
153. See Henry Schwarzschild, Homicide by Injection, N.Y. Times, Dec. 23, 1982, at A15.
154. See Moore, supra note 97, at 23. According to Chapman, he never communicated with anyone in the Texas legislature or department of corrections, although he and others knew Texas was working on "similar legislation, and it was sort of a race to see who was going to get it first." E-mail from A. Jay Chapman, supra note 105.
155. See Moore, supra note 97, at 23.
156. See Am. Veterinary Med. Ass'n, 2000 Report of the AVMA Panel on Euthanasia, 218 J. Am. Veterinary Med. Ass'n 669, 680 (2001).
157. See id. at 673.
158. See infra Part III.
159. Ironically, because of expert testimony that the first drug in the lethal sequence would render the inmate unconscious, some courts have not addressed the substance of the animal euthanasia argument. See, e.g., Hankins v. Quarterman, No. 4:04 CV 875-Y, 2007 WL 959040, at *20-21 (N.D. Tex. Mar. 30, 2007). The animal euthanasia issue may acquire momentum as lethal injection litigation gains further steam. See Brown v. Beck, No. 5:06CT3018 H, 2006 WL 3914717, at *2 n.2 (E.D.N.C. Apr. 7, 2006) ("Plaintiff notes that protocols utilizing such long-acting barbiturates have been adopted by the American Veterinary Medical Association and by physicians under Oregon's Death with Dignity Act."). On the whole, however, courts have yet to give substantial attention to arguments regarding animal euthanasia. See, e.g., Walker v. Johnson, 448 F. Supp. 2d 719, 724 (E.D. Va. 2006) ("[A]ny discussion by Plaintiff about the standards of animal euthanasia has no bearing on death penalty matters and is rejected by the Court.").
160. Beardslee v. Woodford, 395 F.3d 1061, 1073 (9th Cir. 2005); see also id. at 1073 n. 10 (noting that "[t]he most common protocol for animal euthanasia is a single overdose of a barbiturate, usually sodium pentobarbital (which is a longer acting barbiturate than sodium pentothal)"). 164. See generally Am. Veterinary Med. Ass'n, supra note 159.
161. See Morales v. Hickman, 415 F. Supp. 2d 1037, 1047 (N.D. Cal. 2006), aff'd per curiam, 438 F.3d 926 (9th Cir. 2006), cert. denied, 546 U.S. 1163 (2006).
162. See Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035, at *8 (W.D. Mo. June 26, 2006), rev'd, 487 F.3d 1072 (8th Cir. 2007).
163. See Ga. Code Ann. § 17-10-42.1 (2006). The statute reads, "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." Id.
164. See Fla. Dep't of Corr., Execution by Lethal Injection Procedures 2-3 (July 31, 2007) (laying out specific procedures).
165. See infra Part II.C.
166. See infra Part II.A-B; see also Linda L. Emanuel & Leigh B. Bienen, Physician Participation in Executions: Time to Eliminate Anonymity Provisions and Protest the Practice, 135 Annals Internal Med. 922 (2001); Jonathan I. Groner, Lethal Injection: The Medical Charade, 20 Ethics & Med. 25 (2004).
167. See supra notes 11-13 and accompanying text.
168. See supra note 125 and accompanying text.
169. See supra note 137 and accompanying text.
170. See Denno, When Legislatures Delegate, supra note 15, at 92 n.183. 0 175. See id. at 100-16.
171. See id. at 131; see also Ala. Code § 15-18-82.1 (2006).
172. See infra notes 320-22.
173. See supra notes 150-51 (noting the inclusion of tubo-curarine and succinylcholine chloride in Oklahoma's 1981 protocol, drugs which are comparable to pancuronium bromide).
174. See supra note 150 (referring to potassium chloride); see also infra Part III; see e.g., Nicholas K. Geranios, Lethal Injection State's New Killer, Journal Star (Peoria, Ill.), May 11, 1987, at B8 ('"We based our [lethal injection] procedures on what they do in Oklahoma and Texas,' said [Illinois] Department of Corrections spokesman Nie Howell. 'It was obvious it worked and was something we could adapt for our work.'"). For a discussion of the problems with the chemicals, see Ty Alper, Capital Cases: Lethal Incompetence, Champion, Sept.-Oct. 2006, at 41.
175. See Steve Carrell, Execution Controversy Faces Physician, Am. Med. News, Jan. 21, 1983, at 37.
176. See generally Denno, When Legislatures Delegate, supra note 15 (analyzing the disregard states had for botched executions in adopting lethal injection as an execution method).
177. See infra Part III.
178. Baze v. Rees, No. 04-CI-1094, slip op. at 2 (Ky. Cir. Ct. July 8, 2005), aff'd, 217 S.W.3d 207 (Ky. 2006), reh'g denied, No. 2005-SC-000543-MR, 2007 Ky. LEXIS 98 (Ky. Apr. 19, 2007), cert. granted, No. 07-5439, 2007 U.S. LEXIS 9066 (U.S. Sept. 25, 2007), amended, No. 07-5439, 2007 U.S. LEXIS 11115 (U.S. Oct. 3, 2007) ("The petition for a writ of certiorari is granted limited to Questions 1, 2, and 3 presented by the petition."); see also Carrell, supra note 180, at 37 (noting that all three drugs were available in the first lethal injection execution in this country).
179. See supra note 40 and accompanying text.
180. See Nova Online, supra note 7.
181. See, e.g., Code of Ethics E-2.06 (Am. Med. Ass'n 2000). For an overview of the perspectives of medical associations on this issue, see Kenneth Baum, "To Comfort Always": Physician Participation in Executions, 5 N.Y.U. J. Legis. & Pub. Pol'y 47 (2001).
182. See Code of Ethics E-2.06 (Am. Med. Ass'n 2000) ("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.").
183. Message from Orin F. Guidry, supra note 45 (stating that the American Society of Anesthesiologists had adopted the AMA's Code of Ethics regarding capital punishment in 2001).
184. Am. Nurses Ass'n, Position Statement: Nurses' Participation in Capital Punishment (1994) available at http://www.needlestick.org/readroom/ position/ethics/etcptl.htm. "The American Nurses Association (ANA) is strongly opposed to nurse participation in capital punishment. Participation in executions is viewed as contrary to the fundamental goals and ethical traditions of the profession." Id.
185. Nat'l Comm'n on Corr. Health Care, Standards for Health Services in Prisons P-I-08 (2003) (on file with author). "The correctional health services staff do not participate in inmate executions." Id. at 1.
186. See supra note 10.
187. See N.C. Med. Bd., Position Statement: Capital Punishment (2007), http://www.ncmedboard.org/Clients/NCBOM/Public/PublicMedia/capitalpunishment. htm. The board adopted the AMA's position on capital punishment, noting, however, that [t]he Board recognizes that N.C. Gen. Stat. § 15-190 requires the presence of 'the surgeon or physician of the penitentiary' during the execution of condemned inmates. Therefore, the Board will not discipline licensees for merely being 'present' during an execution in conformity with N.C. Gen. Stat. § 15-190. However, any physician who engages in any verbal or physical activity, beyond the requirements of N.C. Gen. Stat. § 15-190, that facilitates the execution may be subject to disciplinary action by this Board. Id. On September 21, 2007, however, a North Carolina superior court judge ruled that, based on its interpretation of the legislature's intent in devising N.C. Gen. Stat. § 15-190, the North Carolina Medical Board "improperly exceeded its authority ... to regulate the practice of medicine" by virtue of "declaring] physician conduct unethical and subject to discipline even though such conduct is specifically authorized and required by law." N.C. Dep't of Corr. v. N.C. Med. Bd., No. 07-CVS-3574, at 4 (N.C. Super. Ct. Sept. 21, 2007) (order granting plaintiffs request for declaratory relief and denying defendant's motion to dismiss). The court has thereby prohibited the North Carolina Medical Board "from enforcing the Position Statement and taking disciplinary action against physicians who have participated in or otherwise have been involved in judicial executions by lethal injection" or who will be so involved in the future. Id. at 5.
188. See Code of Ethics E-2.06 (Am. Med. Ass'n 2000).
189. Id.
190. See generally David J. Rothman, Physicians and the Death Penalty, 4 J.L. & Pol'y 151 (1995) (discussing the historical role of physicians in executions).
191. Code of Ethics E-2.06 (Am. Med. Ass'n 2000).
192. Id.
193. Id.
194. Id.
195. See Exhibit of Application for Post-Conviction Writ of Habeas Corpus, Ex parte Miguel A. Richardson, No. 81-CR-1548 (Tex. Crim. App. Dec. 16, 1996).
196. See supra notes 196-99 and accompanying text (interpreting the AMA council's guidelines).
197. See Code of Ethics E-2.06 (Am. Med. Ass'n 2000).
198. See supra notes 186-89.
199. See Denno, When Legislatures Delegate, supra note 15, app. 1 at 156-69 tbl. 17.
200. See Yuji Noto, American Medical Association (AMA) and Its Membership Strategy and Possible Applications for the Japan Medical Association (JMA) 14 (1999); see also Am. Med. Ass'n, Physicians in the United States and Possession by Selected Characteristics (2001), http://www.ama-assn.org/ ama1/pub/upload/images/373/internettable.gif (noting that in 2000, there were 813,770 physicians in the United States).
201. See Zitrin v. Ga. Composite State Bd. of Med. Examiners, No. 2005CV103905 (Ga. 2006).
202. N.C. Dep't of Corr. v. N.C. Med. Bd., No. 07-CVS-3574, at 5 (N.C. Super. Ct. Sept. 21, 2007) (order granting plaintiffs request for declaratory relief and denying defendant's motion to dismiss); see also Complaint at 2, N.C. Dep't of Corr. v. N.C. Med. Bd., No. 07-CVS-3574 (N.C. Super. Ct. Mar. 6, 2001) (alleging that executions are not medical procedures regardless of participation by physicians or emergency medical technicians and, therefore, requesting a preliminary injunction preventing the North Carolina Medical Board from taking action against doctors who participate and requesting the court declare that executions are not medical procedures); supra note 192 and accompanying text (summarizing the substance of the litigation).
203. See infra Part II.C.
204. See infra Part II.D.
205. Baum, supra note 186, at 58-67 (detailing the reasons why arguments against physician participation in executions are outdated).
206. Am. Coll. of Physicians et al., Breach of Trust: Physician Participation in Executions in the United States (1994) [hereinafter Breach of Trust].
207. See id. at 1. Ironically, an article published in the American Medical News concerning the prospect of physician involvement prior to Walker's execution quoted one of the three Illinois Department of Corrections doctors as saying that it would be "absurd" to expect any of the three prison physicians to be involved in the execution. As that same doctor emphasized, '"Executions don't fall into my job qualifications .... This is a difficult enough place to work in already.'" Barbara Dow, Physicians Ponder Role as the Agent of Death, Am. Med. News, Sept. 4, 1987, at 9.
208. See Breach of Trust, supra note 211, at 1.
209. See id.
210. Id.
211. Id. at 3.
212. Id.
213. Id.
214. Id.
215. Id. at 38.
216. Id.
217. Id.
218. See generally id. (conducting a nationwide survey of physician participation in lethal injection executions).
219. See supra note 117 and accompanying text.
220. See Carrell, supra note 180, at 37.
221. See id. at 37-38.
222. See id. at 37.
223. Id. at 37.
224. Id. at 37.
225. See Jack Kevorkian, Prescription: Medicide, the Goodness of Planned Death 17-99 (1991) [hereinafter Kevorkian, Prescription] (emphasizing that the great majority of death row inmates want to donate their organs in order to "repay a social debt" despite anti-donation arguments by the medical profession); Jack Kevorkian, Opinions on Capital Punishment, Executions and Medical Science, 4 Med. & L. 515, 515-33 (1985) [hereinafter Kevorkian, Opinions on Capital Punishment] (contending that lethal injection is the preferred execution method and that inmates should be allowed to donate their organs).
226. Kevorkian, Prescription, supra note 230, at 63.
227. Kevorkian, Opinions on Capital Punishment, supra note 230, at 522.
228. See generally Neal Nicol & Harry Wylie, Between the Dying and the Dead: Dr. Jack Kevorkian's Life and the Battle to Legalize Euthanasia (2006) (discussing Kevorkian's life and career and all of its controversies).
229. Telephone Interview with Lawrence D. Egbert, Visiting Professor of Anesthesiology & Critical Care Med., Johns Hopkins Univ. Sch. of Med. (Jan. 24, 2007).
230. Id. The Association of University Anesthesiologists does not keep minutes of their meetings. Telephone Interview with Lawrence D. Egbert, Visiting Professor of Anesthesiology & Critical Care Med., Johns Hopkins Univ. Sch. of Med. (Aug. 23, 2007).
231. See Lawrence D. Egbert, Physicians and the Death Penalty, America, Mar. 7, 1998, at 16.
232. See Telephone Interview with Lawrence D. Egbert, Visiting Professor of Anesthesiology & Critical Care Med., Johns Hopkins Univ. Sch. of Med. (Jan. 24, 2007).
233. See Message from Orin F. Guidry, supra note 45.
234. Telephone Interview with Edward A. Brunner, Chair (retired), Dep't of Anesthesiology, Northwestern Univ. Med. Sch. (Mar. 19, 2007).
235. See Denno, Getting to Death, supra note 15, at 373-87 (discussing the early lethal injection litigation and Brunner's and Egbert's contributions).
236. See id.
237. See infra Parts III, IV.
238. See Mark Dershwitz-Biochemistry and Molecular Pharmacology Faculty-UMass Medical School, http://www.umassmed.edu/bmp/faculty/dershwitz.cftn (last visited Aug. 31, 2007).
239. See Columbia Presbyterian Medical Center Staff Profile, Mark J. Heath, M.D., http://asp.cpmc.columbia.edu/facdb/profile_list.asp?uni= mh22&DepAffil=Surgery (last visited Aug. 31, 2007).
240. See Roko, supra note 39, at 2791-92.
241. See Gawande, supra note 7, at 1228.
242. See Andrea Weigl, Did Doctor Stand Idle, or Monitor Executions?, News & Observer (Raleigh, N.C.), Mar. 29, 2007, at 1A.
243. See Gawande, supra note 7, at 1223-38.
244. Id. at 1226.
245. See supra note 232 and accompanying text.
246. See Gawande, supra note 7, at 1226.
247. Id. at 1228.
248. Id. at 1226.
249. See Conner v. N.C. Council of State, No. 07 Gov 0238, slip op. at 7 (N.C. Office of Admin. Hearings Aug. 9, 2007).
250. See id. at 12 (including as a factual finding that "[t]rained medical personnel should be available to observe the inmate and measure vital signs, including heart rate, blood pressure, and breathing").
251. Id. at 13; see also N.C. Dep't of Corr. v. N.C. Med. Bd., No. 07-CVS-3574, at 5 (N.C. Super. Ct. Sept. 21, 2007) (order granting plaintiffs request for declaratory relief and denying defendant's motion to dismiss); supra notes 192, 206-07 and accompanying text (discussing a North Carolina superior court judge's decision prohibiting the North Carolina Medical Board from disciplining doctors involved in lethal injection executions). This issue is a growing source of controversy and debate within the medical profession. For example, physician David Waisel makes a compelling case for why physician participation in lethal injections is "necessary to ensure a good death." David Waisel, Commentary, Physician Participation in Capital Punishment, 82 Mayo Clin. Proc. 1073, 1073 (2007) (contending that "it is honorable for physicians to minimize the harm to ... condemned individuals and that organized medicine has an obligation to permit physician participation in legal execution"). On the other hand, medical ethicist Arthur L. Caplan contends that the need for "technical expertise," which he claims is the major reason for involving physicians in lethal injections, "does not justify medicine's acceptance of physician involvement in executions," but rather only the requirement that nonmedical executioners be properly trained. Arthur L. Caplan, Editorial, Should Physicians Participate in Capital Punishment?, 82 Mayo Clin. Proc. 1047, 1048 (2007). For an overview and backdrop to this particular debate, see William L. Lanier & Keith H. Berge, Editorial, Physician Involvement in Capital Punishment: Simplifying a Complex. Calculus, 82 Mayo Clin. Proc. 1043 (2007) (criticizing physician involvement in executions).
252. Conner v. N.C. Council of State, No. 07 Gov 0238, slip op. at 14 (N.C. Office of Admin. Hearings Aug. 9, 2007).
253. Council on Ethical and Judicial Affairs, Am. Med. Ass'n, Council Report: Physician Participation in Capital Punishment, 270 JAMA 365, 366 (1993).
254. See Message from Orin F. Guidry, supra note 45 ("Lethal injection was not anesthesiology's idea. American society decided to have capital punishment as part of our legal system and to carry it out with lethal injection. The fact that problems are surfacing is not our dilemma. The legal system has painted itself into this comer and it is not our obligation to get it out.").
255. For state statutes on physician participation, see Ala. Code §§ 15-18-82.1, 15-18-83 (2007); Ariz. Rev. Stat. Ann. § 13-704 (2006); Cal. Penal Code § 3605 (West 2007); Colo. Rev. Stat. Ann. §§ 18-1.3-1204, 18-1.3-1206 (West 2006); Conn. Gen. Stat Ann. § 54-100 (West 2007); Del. Code Ann. tit. 11, § 4209 (2007); Fla. Stat. Ann. §§ 922.105, 922.11 (West 2007); Ga. Code Ann. §§ 17-10-38, 17-10-41, 17-10-42.1 (2006); Idaho Code Ann. § 19-2716 (2006); 725 111. Comp. Stat. Ann. 5/119-5 (West 2006); Ind. Code Ann. § 35-38-6-6 (West 2006); Ky. Rev. Stat. Ann. §§ 431.220, 431.250 (West 2006); La. Rev. Stat. Ann. §§ 15:569-570 (2006); Miss. Code Ann. §§ 99-19-51, 99-19-55 (2006); Mont. Code Ann. § 46-19-103 (2005); Nev. Rev. Stat. Ann. § 176.355 (West 2006); N.H. Rev. Stat. Ann. § 630:5 (2006); N.J. Stat. Ann. §§ 2C:49-2, 2C:49-3, 2C:49-7, 2C:49-8 (West 2007); N.M. Stat. § 31-14-15 (2006); N.Y. Correct. Law §§ 660, 661 (McKinney 2003); N.C. Gen. Stat. Ann. §§ 15-190, 15-192 (West 2006); Ohio Rev. Code Ann. § 2949.25 (West 2007); Okla. Stat. Ann. tit. 22, §§ 1014, 1015 (West 2006); Or. Rev. Stat. §§ 137.473, 137.476 (2005); S.C. Code Ann. § 24-3-560 (2006); S.D. Codified Laws § 23A-27A-32 (2006) (amended 2007); Tenn. Code Ann. § 40-23-116 (West 2006); Tex. Code Crim. Proc. Ann. art. § 43.20 (Vernon 2006); Utah Code Ann. § 77-19-10 (West 2006); Va. Code Ann. § 53.1-234-235 (West 2006); Wash. Rev. Code Ann. § 10.95.180 (West 2007); Wyo. Stat. Ann. § 7-13-904 (2006).
256. Those states are Alabama, Colorado, Connecticut, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Nevada, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Tennessee, Texas, and Virginia. See Ala. Code § 15-18-83 (2007); Colo. Rev. Stat. Ann. § 18-1.3-1206 (West 2006); Conn. Gen. Stat. Ann. § 54-100 (West 2007); Fla. Stat. Ann. § 922.11 (West 2007); Ga. Code Ann. § 17-10-41 (2006); Ind. Code Ann. § 35-38-6-6 (West 2006); Ky. Rev. Stat. Ann. § 431.250 (West 2006); La. Rev. Stat. Ann. § 15:570 (2006); Miss. Code Ann. § 99-19-55 (2006); Nev. Rev. Stat. Ann. § 176.355 (West 2006); N.J. Stat. Ann. § 2C:49-7 (West 2007); N.M. Stat. § 31-14-15 (2006); N.Y. Correct. Law § 660 (McKinney 2003); N.C. Gen. Stat. Ann. § 15-190 (West 2006); Ohio Rev. Code Ann. § 2949.25 (West 2007); Okla. Stat. Ann. tit. 22, § 1015 (West 2006); Or. Rev. Stat. § 137.473 (2005); Tenn. Code Ann. § 40-23-116 (West 2006); Tex. Code Crim. Proc. Ann. art. 43.20 (Vernon 2006); Va. Code Ann. § 53.1-234 (West 2006).
257. Those states are Colorado, Florida, Georgia, Idaho, Kentucky, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, South Carolina, Utah, Virginia, Washington, and Wyoming. See Colo. Rev. Stat. Ann. § 18-1.3-1204 (West 2006); Fla. Stat. Ann. § 922.11 (West 2007); Ga. Code Ann. § 17-10-41 (2006); Idaho Code Ann. § 19-2716 (2006); Ky. Rev. Stat. Ann. § 431.220 (West 2006); Miss. Code Ann. § 99-19-51 (2006); N.H. Rev. Stat. Ann. §§ 630:5 (2006); N.J. Stat. Ann. § 2C:49-8 (West 2007); N.Y. Correct. Law § 661 (McKinney 2003); N.C. Gen. Stat. Ann. § 15-192 (West 2006); Okla. Stat. Ann. tit. 22, § 1014 (West 2006); S.C. Code Ann. § 24-3-560 (2006); Utah Code Ann. § 77-19-10 (West 2006); Va. Code Ann. § 53.1-235 (West 2006); Wash. Rev. Code Ann. § 10.95.180 (West 2007); Wyo. Stat. Ann. § 7-13-904 (2006).
258. Those states are Alabama, Delaware, Florida, Georgia, New Hampshire, New Jersey, Oregon, and South Dakota. See Ala. Code §§ 15-18-82.1 (2007); Del. Code Ann. tit. 11, § 4209 (2007); Fla. Stat. Ann. § 922.105 (West 2007); Ga. Code Ann. § 17-10-38 (2006); N.H. Rev. Stat. Ann. § 630:5 (2006); N.J. Stat. Ann. § 2C:49-3 (West 2007); Or. Rev. Stat. § 137.473 (2005); S.D. Codified Laws § 23A-27A-32 (2006) (amended 2007).
259. See, e.g., Mont. Code Ann. § 46-19-103(6)(a) (2005) ("[T]he person administering the injection need not be a physician, registered nurse, or licensed practical nurse licensed or registered under the laws of this or any other state."); N.H. Rev. Stat. Ann. § 630:5 (2007) (same); S.D. Codified Laws § 23A-27A-32 (2006) (amended 2007) (same).
260. The statute reads in relevant part, "The Department of Corrections shall not request, require, or allow a health care practitioner licensed in Illinois, including but not limited to physicians and nurses, regardless of employment, to participate in an execution." 725 Ill. Comp. Stat. Ann. 5/119-5(d-5) (West 2007).
261. See N.J. Stat. Ann. §§ 2C:49-2, 2C:49-3 (West 2007). Specifically, a New Jersey statute provides that [t]he commissioner shall designate persons who are qualified to administer injections and who are familiar with medical procedures, other than licensed physicians, as execution technicians to assist in the carrying out of executions, but the procedures and equipment utilized in imposing the lethal substances shall be designed to ensure that the identity of the person actually inflicting the lethal substance is unknown even to the person himself. N.J. Stat. Ann. § 2C:49-3 (West 2007).
262. Those states are Arizona, Georgia, and Oregon. See Ariz. Rev. Stat. Ann. § 13-704 (2006); Ga. Code Ann. § 17-10-42.1 (2006); Or. Rev. Stat. § 137.476 (2005).
263. See H.B. 442, 2007 Gen. Assem., Reg. Sess. (N.C. 2007); see also N.C. Dep't of Corr. v. N.C. Med. Bd., No. 07-CVS-3574, at 5 (N.C. Super. Ct. Sept. 21, 2007) (order granting plaintiffs request for declaratory relief and denying defendant's motion to dismiss); supra notes 192, 206-07, 256.
264. See N.C. Dep't of Corr., No. 07-CVS-3574; Complaint, N. C. Dep't of Corr., No. 07-CVS-3574; Complaint, Zitrin v. Ga. Composite State Bd. of Med. Exam'rs, No. 2005-CV-103905 (Ga. Super. Ct. July 2005).
265. See infra Part IV.
266. Breach of Trust, supra note 211, at 45.
267. Id. at 45-46.
268. See supra notes 261-64 and accompanying text.
269. See supra note 216 and accompanying text.
270. One explanation may be that the report was speaking for a minority of the medical profession, especially since two of the report's four authors are generic anti-death penalty groups; other national-based organizations, such as the AMA or the ASA, were not even mentioned. See Breach of Trust, supra note 211, at ix.
271. See supra note 50 and accompanying text.
272. See infra Parts III, IV.
273. See Council on Ethical and Judicial Affairs, Am. Med. Ass'n, supra note 258, at 366 ("Even when the method of execution is lethal injection, the specific procedures can be performed by nonphysicians with no more pain or discomfort for the prisoner.").
274. See id.
275. See Denno, When Legislatures Delegate, supra note 15, at 121-28; see also id. app. 1 at 256-69 tbl. 17.
276. Morales v. Tilton, 465 F. Supp. 2d 972, 983 (N.D. Cal. 2006).
277. Id.
278. Farmer v. Brennan, 511 U.S. 825, 834 (1994). For an extensive analysis of Eighth Amendment standards in the context of execution methods, see generally Denno, When Legislatures Delegate, supra note 15, and Denno, Getting to Death, supra note 15.
279. See Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035, at *7 (W.D. Mo. June 26, 2006), rev'd, 487 F.3d 1072 (8th Cir. 2007).
280. See Morales, 465 F. Supp. 2d at 983; see also Harbison v. Little, No. 3:06-01206, slip op. at 33 (M.D. Tenn. Sept. 19, 2007) (noting that in Tennessee, with lethal injection executions, there "are known risks - accidents which, given enough of an opportunity, will occur - for which the executioners are completely unprepared. In many cases, the executioners are not even aware that the risks exist").
281. See generally Morales, 465 F. Supp. 2d 972.
282. Morales v. Hickman, 415F. Supp. 2d 1037, 1039 (N.D. Cal 2006), aff'd per curiam, 438 F.3d 926 (9th Cir. 2006), cert. denied, 546 U.S. 1163 (2006).
283. See id. at 1043-414.
284. See id.
285. See id. at 1044.
286. See id.
287. See id.
288. Morales v. Tilton, 465 F. Supp. 2d 972, 979 n.8 (N.D. Cal. 2006).
289. See generally Denno, When Legislatures Delegate, supra note 15.
290. See id. at 90-128.
291. See id. at 128.
292. See infra Part IV.
293. See infra Part IV.
294. See Baze v. Rees, No. 07-5439, 2007 U.S. LEXIS 9066 (U.S. Sept. 25, 2007) (granting certiorari), amended, No. 07-5439, 2007 U.S. LEXIS 11115 (U.S. Oct. 3, 2007) ("The petition for a writ of certiorari is granted limited to Questions 1, 2, and 3 presented by the petition."); Petition for a Writ of Certiorari, Baze, 2007 U.S. LEXIS 9066 (No. 07-5439). 300. See Gregg v. Georgia, 428 U.S. 153, 173 (1976); see also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947) (plurality opinion).
295. See supra notes 50-52.
296. See Ala. Code § 15-18-82.1 (2006). Therefore, Alabama is in this author's 2005 study although it was not in the 2001 study. While the 2005 study adds Alabama, it excludes New York. New York, which rendered its death penalty unconstitutional in 2004, see People v. Lavalle, 817 N.E.2d 341, 367 (N.Y. 2004), is not in the 2005 study for methodological reasons; however, lethal injection remains the state's method of execution. See N.Y. Correct. Law § 658 (McKinney 2003).
297. See supra note 52.
298. S.D. Codified Laws § 23A-27A-32 (2006) (amended 2007). The South Dakota governor stayed the execution of a condemned inmate on the day of the execution after attorneys for the inmate pointed out a discrepancy between the state's lethal injection statute and the information a spokesman for the department of corrections had provided for the survey of lethal injection protocols published in this author's 2002 article in the Ohio State Law Journal. See Nestor Ramos & Dan Haugen, Law Flawed, Death Denied, Argus Leader (S.D.), Aug. 30, 2006, at 1A. South Dakota's statute mentioned the use of only two drugs, but the spokesman had stated that the protocol required three drugs. Compare S.D. Codified Laws § 23A-27A-32 (2006) (amended 2007), with Denno, When Legislatures Delegate, supra note 15, app. 3 at 251. In July 2007, South Dakota carried out its first execution in six decades. See Monica Davey, Execution in South Dakota, Delayed a Year by Debate on Method, Is First in 6 Decades, N. Y. Times, July 13, 2007, at A12.
299. Wyo. Stat. Ann. § 7-13-904 (2007).
300. See id. Like many states (including Oklahoma), Wyoming's original lethal injection statute referred only to two chemicals-"an ultra-short acting barbiturate in combination with a chemical paralytic agent." Wyo. Stat. Ann. § 7-13-904 (2006) (amended 2007). Yet the state's protocol specified three chemicals, including potassium chloride. See Denno, When Legislatures Delegate, supra note 15, app. 3 at 260. The 2007 legislative change thereby added the phrase "and potassium chloride or other equally effective substances sufficient to cause death." Wyo. Stat. Ann. § 7-13-904 (2007).
301. South Dakota, which had the identical two-chemical wording in its statute as Wyoming, S.D. Codified Laws § 23A-27A-32 (2006) ("an ultra-short acting barbiturate in combination with a chemical paralytic agent"), made its statutory information more vague: "The punishment of death shall be inflicted by the intravenous injection of a substance or substances in lethal quantity." An Act to Provide for the Substances Used in the Execution of Sentence of Death and to Allow the Choice of the Substances Used in an Execution Under Certain Circumstances, H.B. 1175, 82d Leg. Assem., 2007 Leg. Sess. (S.D. 2007). In addition, the revised statute clearly delegates the decision making to the department of corrections, adding that "[t]he warden... shall determine the substances and quantity of substances used for the punishment of death." Id.
302. See supra Part I.B.
303. See Baze v. Rees, No. 07-5439, 2007 U.S. LEXIS 9066 (U.S. Sept. 25, 2007) (granting certiorari), amended, No. 07-5439, 2007 U.S. LEXIS 11115 (U.S. Oct. 3, 2007) ("The petition for a writ of certiorari is granted limited to Questions 1, 2, and 3 presented by the petition."); Petition for a Writ of Certiorari, Baze, 2007 U.S. LEXIS 9066 (No. 07-5439); see also supra notes 17-27 and accompanying text (discussing ongoing lethal injection challenges).
304. Id.
305. See infra Part III.B.
306. This study defines "complete public protocol" as those protocols with information readily available on all of the factors analyzed in this study. A state that claimed its protocol was confidential did not give relevant information on any of the factors.
307. Those states are Colorado, Connecticut, Georgia, New Mexico, Oregon, and Washington. See infra Appendix; compare id., with Denno, When Legislatures Delegate, supra note 15, app. 1 at 181 tbl. 19. All six of those states with public protocols in 2005 had public protocols in 2001. Compare infra Appendix, with Denno, When Legislatures Delegate, supra note 15, app. 1 at 181 tbl. 19. Of the states with public protocols in 2001, five states changed to a confidential protocol in 2005: Idaho, Illinois, Montana, North Carolina, and Texas. Compare infra Appendix, with Denno, When Legislatures Delegate, supra note 15, app. 1 at 181 tbl. 19. An additional four states with public protocols in 2001 did not have protocols at all in 2005. Compare infra Appendix, with Denno, When Legislatures Delegate, supra note 15, app. 1 at 181 tbl. 19. New Jersey's protocol was under revision in 2005; New York's highest court declared the death penalty unconstitutional in 2004; New Hampshire and Wyoming both were listed as having partially private protocols in 2001, but are listed as not having a protocol for 2005. Compare infra Appendix, with Denno, When Legislatures Delegate, supra note 15, app. 1 at 181 tbl. 19. And six states (Arizona, Arkansas, California, Florida, Oklahoma, and South Dakota) moved from a public protocol to partially private protocol. Compare infra Appendix, with Denno, When Legislatures Delegate, supra note 15, app. 1 at 181 tbl. 19. Only one state, Virginia, provided more information in 2005 than in 2001, moving from a confidential protocol to a partially private protocol. Compare infra Appendix, with Denno, When Legislatures Delegate, supra note 15, app.1 at 181 tbl. 19.
308. See Denno, When Legislatures Delegate, supra note 15, at 116 n.369. The four states were Nevada, Pennsylvania, South Carolina, and Virginia. See id.
309. See infra Appendix. The fifteen states claiming confidentiality are as follows: Alabama, Delaware, Idaho, Illinois, Indiana, Kentucky, Mississippi, Missouri, Montana, Nevada, North Carolina, Ohio, Pennsylvania, Texas, and Utah. New Hampshire and Wyoming said protocols did not exist, while South Carolina provided no information whatsoever. Again, such information can be obtained, in part, through litigation.
310. See infra Appendix (Arizona, Arkansas, Kansas, Louisiana, Maryland, Oklahoma, Tennessee, and Virginia). In the 2001 survey, Kansas and Kentucky had indicated that information did not exist. See Denno, When Legislatures Delegate, supra note 15, app. 1 at 146 tbl. 11.
311. See infra Appendix (California and Florida).
312. In 2005, twenty-seven states provided information on the drugs used in lethal injections. See infra Appendix. In turn, twenty-nine states had disclosed this information in 2001. See Denno, When Legislatures Delegate, supra note 15, app. 1 at 146 tbl. 11. In 2005, twenty-six states used a lethal combination of sodium thiopental, pancuronium bromide, and potassium chloride. See infra Appendix. Those states are Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maryland, Missouri, Montana, New Mexico, North Carolina, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, and Washington. See infra Appendix. In 2005, Oklahoma was the sole exception. See infra Appendix.
313. For example, six states (Delaware, Idaho, Illinois, Mississippi, New Jersey, and Wyoming) that had provided information on the combination of chemicals used in lethal injections in 2001 did not do so in 2005. Compare Denno, When Legislatures Delegate, supra note 15, app. 1 at 146 tbl. 11, with infra Appendix. This figure of six does not include New York, which was in the survey sample in 2001 but not in the survey sample in 2005 because the state's death penalty statute had been declared unconstitutional in 2004. See supra note 50. Four states that had not provided data in 2001 on the chemicals used did disclose such information in 2005 (Kansas, Kentucky, Pennsylvania, and Virginia). Compare Denno, When Legislatures Delegate, supra note 15, app. 1 at 146 tbl. 11, with infra Appendix. This figure does not include Alabama, which switched to lethal injection as an alternative method of execution in the interim period between studies. See supra note 302 and accompanying text. Information for two states, Kansas and Kentucky, did not exist in 2001, but was provided in 2005. Compare Denno, When Legislatures Delegate, supra note 15, app. 1 at 146 tbl. 11, with infra Appendix. Information for Pennsylvania and Virginia was confidential in 2001, but those states provided the information in 2005. Compare Denno, When Legislatures Delegate, supra note 15, app. 1 at 146 tbl. 11, with infra Appendix.
314. The two states that deviated from their 2001 protocols are easily explained. Oklahoma substituted vecuronium bromide in 2005 for pancuronium bromide in 2001. Compare Denno, When Legislatures Delegate, supra note 15, app. 1 at 146 tbl. 11, with infra Appendix. North Carolina did not mention potassium chloride as part of its combination in 2001, but listed it as the third chemical in 2005. Compare Denno, When Legislatures Delegate, supra note 15, app. 1 at 146 tbl. 11, with infra Appendix. Oklahoma's substitution is not significant because vecuronium and pancuronium are very similar compounds. See A.G. McKenzie, Historical Note: Prelude to Pancuronium and Vecuronium, 55 Anaesthesia 551, 551-55 (2000).
315. See supra notes 150-51 and accompanying text.
316. Those states were Alabama, California, Colorado, Connecticut, Florida, Georgia, Kentucky, Maryland, New Mexico, North Carolina, Tennessee, Texas, and Washington. See infra Appendix. The chemical combinations in those states were as follows: Alabama: 1. Sodium Pentothal (50 cc); 2. Sodium Pentothal (50 cc); 3. Saline (60 cc); 4. Pavulon (50 cc); 5. Saline (60 cc); 6. Potassium Chloride (60 cc), Saline (60 cc); California: 1. Sodium Pentothal (5 g) in 20-25 cc of diluent; 2. Pancuronium Bromide (50 cc); 3. Potassium Chloride (50 cc); Colorado: 1. Sodium Pentothal (2.5 g); 2. Pancuronium Bromide (100 mg); 3. Potassium Chloride (100 mEq); Connecticut: 1. Thiopental Sodium (2500 mg) in 50 ml of clear Sodium Chloride 0.9% solution of approximate concentration of mg/ml or 5%; 2. Pancuronium Bromide (100 mg) (contents often 5 ml vials of 2 mg/ml concentration) in 50 ml; 3. Potassium Chloride (120 mEq) (contents of two 30 ml vials of 2 mEq/ml concentration) in 60 ml; Florida: 1. No less than 2 g of Sodium Pentothal (two syringes); 2. Saline solution; 3. No less than 50 mg of Pancuronium Bromide (two syringes); 4. Saline solution; 5. No less than 150 mEq of Potassium Chloride; Georgia: 1. Sodium Pentothal - six packages each containing 1 g + 50 cc of sterile water; 2. Pavulon (Pancuronium Bromide) - fifteen vials each containing 10 mg; 3. Potassium Chloride - nine vials each containing 40 mEq; 4. Intervals of saline; Kentucky: 1. Sodium Pentothal (3 g); 2. Saline (25 mg); 3. Pavulon (50 mg); 4. Saline (25 mg); 5. Potassium Chloride (240 mEq); Maryland: 1. 120 cc/3 g/two 60 cc syringes of Sodium Pentothal; 2. 50 cc/50 mEq./one 50 cc syringe of Pavulon; 3. 50 cc/50 mEq/one 50 cc syringe of Potassium Chloride; New Mexico: 1. One syringe of 2 g of Sodium Pentothal (contents of four 500 mg vials dissolved in the smallest amount of diluent possible to attain complete, clear suspension); 2. Three syringes each of 50 mg Pavulon; 3. Three syringes each of 50 mEq of Potassium Chloride; Two syringes each of 10-50 cc of saline; North Carolina: 1. No less than 3000 mg of Sodium Pentothal; 2. Saline flush; 3. No less than 40 mg of Pancuronium Bromide (Pavulon); 4. No less than 160 mEq of Potassium Chloride, saline to flush the intravenous lines clean; Tennessee: 1. Diluted Sodium Pentothal (50 cc); 2. Pancuronium Bromide (100 cc); 3. Potassium Chloride (100 cc); Texas: 1. 30 ml of solution containing 3 g of Thiopental Sodium (Sodium Pentothal); 2. 50 ml of solution containing 100 mg of Pancuronium Bromide; 3. 70 ml of solution containing 140 mEq of Potassium Chloride; Washington: 1. Thiopental Sodium (2 g); 2. Normal saline (50 cc); 3. Pancuronium Bromide (100 mg); 4. Normal saline (50 cc); 5. 1.50 to 2.70 mEq/kg, based on body weight, Potassium Chloride (KCl). See infra Appendix.
317. See Denno, When Legislatures Delegate, supra note 15, app. 1 at 150 tbl. 15. Those nine states were California, Connecticut, Florida, Mississippi, Montana, New Mexico, North Carolina, Tennessee, and Washington. Id. Five states providing the quantities of chemicals in 2005 had not offered that information in 2001. See infra Appendix. Those states were Colorado, Georgia, Kentucky, Maryland, and Texas. See id. Notably, Alabama also provided this information in 2005. See id. Two states (Mississippi and Montana) that had disclosed the quantities of the chemicals used in 2001 did not do so in 2005. Compare Denno, When Legislatures Delegate, supra note 15, app. 1 at 149 tbl. 14, with infra Appendix. For two states (North Carolina and Washington), the amounts specified in 2005 differed from the amounts provided in 2001. Compare Denno, When Legislatures Delegate, supra note 15, app. 1 at 150 tbl. 15, with infra Appendix. All other states that provided the chemical quantities in 2001 gave the same information in 2005. Compare Denno, When Legislatures Delegate, supra note 15, app. 1 at 150 tbl. 15, with infra Appendix.
318. In general, chemical quantities should be specified in two ways to determine if the chemical concentration is sufficient: (1) by weight, which is indicated by grams (gm) or milligrams (mg), and (2) by volume, which is indicated by cubic centimeters (cc) or milliliters (ml). See Denno, When Legislatures Delegate, supra note 15, at 119. Information on both the weight and the volume of diluent can indicate whether the concentration is so weak it will have no effect, or so dense it can irritate an inmate's veins and cause pain. See Transcript of Proceedings at 503-04, Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006) (No. C-06-0219-JF) (testimony of Mark Heath, M.D.).
319. See id. ("I've never heard of anybody making up pentothal at 20 percent. That's an off-the-charts concentration of pentothal . . . .").
320. Id.
321. M at 504.
322. As the quantities listed in note 322, supra, indicate, for half of the six states that had no specified quantities in 2001, the information provided in 2005 is inadequate. For example, Alabama, Colorado, and Kentucky have incomplete protocols in which at least one, if not more, chemical does not have both volume and weight. Therefore, the chemical concentrations are unknown. For the other three, the specified concentrations for Georgia, Maryland, and Texas seem relatively orderly and proper, at least on paper. The fact that Maryland's protocol is written in a cumbersome way, however, suggests that its authors do not appear to be medically sophisticated. North Carolina and Washington, which both specified the quantities of chemicals in 2001, changed their specifications in 2005. The 2005 North Carolina protocol is a substantial improvement over its 2001 variant because it mentions a proper concentration of potassium chloride; nonetheless, the 2005 North Carolina protocol only mentions the weight but not the volume of sodium thiopental and pancuronium bromide. The protocol for Washington became more problematic from 2001 to 2005. In 2001, Washington was one of four states in which the weights and volumes for sodium thiopental and pancuronium bromide were specified and predictably lethal; in turn, only the weight was provided for the potassium chloride. Yet, in 2005, there were a host of problems with the Washington protocol that make it more difficult to interpret. For example, the protocol provides only the weight, and not the volume, of the three chemicals. Overall, then, the passage of time has had an odd and unexpected detrimental effect. Mississippi and Montana are perhaps the most perplexing because they made available their chemical quantities in 2001 but refused to give the information in 2005. See Denno, When Legislatures Delegate, supra note 15, at 118-21. In general, states that reported the same information at both time points also vary in the extent of their sophistication.
323. See Denno, When Legislatures Delegate, supra note 15, at 119-20; see also id. app. 1 at 150 tbl. 15.
324. See supra note 328.
325. See State of Wash., Dep't of Corr., Capital Punishment DOC 490.200 (June 21, 2007). The amounts for the 2005 and 2007 protocols are the same. In both, however, relative to the 2001 protocol, the concentration ratios for two drugs (sodium thiopental and pancuronium bromide) are unknown (only their weights are reported, not their volumes), and the weight for pancuronium bromide is doubled. See id.; supra note 328.
326. See Morales v. Hickman, 415 F. Supp. 2d 1037, 1044-46 (N.D. Cal. 2006), aff'd per curiam, 438 F.3d 926 (9th Cir. 2006), cert. denied, 546 U.S. 1163 (2006); Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035, at *9 (W.D. Mo. June 26, 2006), rev'd, 487 F.3d 1072 (8th Cir. 2007); Conner v. N.C. Council of State, No. 07 Gov 0238, slip op. at 8 (N.C. Office of Admin. Hearings Aug. 9, 2007) (discussing the February 2007 approval of a new protocol for North Carolina).
327. See Conner, No. 07 Gov 0238, slip op. at 8-11; State of Cal., San Quentin Operational Procedure Number 0-770 Execution by Lethal Injection (Revised May 15, 2007); Fla. Dep't of Corr., Execution by Lethal Injection Procedures (July 31, 2007); Ga. Dep't of Corr., Lethal Injection Procedure (June 7, 2007); S.D. Dep't of Corr., Policy 1.3.D.3: Execution of an Inmate (June 8, 2007) (effective July 1, 2007); Tenn. Dep't of Corr., Execution Procedures for Lethal Injection (Apr. 30, 2007); State of Wash., Dep't of Corr., Capital Punishment DOC 490.200 (June 21, 2007). Florida also had issued a new protocol on May 9, 2007. Fla. Dep't of Corr., Execution by Lethal Injection Procedures (May 9, 2007). Tennessee's protocol, however, has since been rendered unconstitutional. Harbison v. Little, No. 3:06-01206, slip op. at 55-56 (M.D. Tenn. Sept. 19, 2007).
328. See Davey, supra note 304; Death Penalty Info. Ctr., Execution in the United States in 2007, http://www.deathpenaltyinfo.org/article. php?did=1666 (last visited Sept. 27, 2007) (noting the execution of John Hightower on June 26, 2007); Tenn. Dep't of Corr., Tennessee Executions, http://www.tennessee.gov/correction/newsreleases/tnexecutions.htm (last visited Sept. 27, 2007) (listing the May 9, 2007 execution of Phillip Workman). This circumstance is all the more disturbing in light of Judge Aleta A. Trauger's recent determination that the current Tennessee protocol is unconstitutional. Harbison, No. 3:06-01206, slip op. at 55-56.
329. See Jay F. Marks, Inmates Fight to the Death: Lawsuits Try to Execute Lethal Injection Tactics, Oklahoman, Aug. 21, 2006, at 9A (noting that the state had increased the amount of anesthesia). Oklahoma did not provide the amount of chemicals used in the 2005 survey. See supra note 328.
330. See Letter from Terry J. Collins, Dir., Ohio Dep't of Rehab. & Corr., to Gov. Bob Taft (June 27, 2006) (on file with author); see also Jim Provance & Christina Hall, Clark Execution Raises Lethal-Injection Issues, Blade (Toledo, Ohio), May 4, 2006, at 1.
331. See Letter from Terry J. Collins, supra note 336 (indicating changes including making every effort to establish two intravenous lines, one in each arm, and using a slow-drip process instead of a high-pressure syringe injection as well as removing time constraints on how quickly execution team members must complete their tasks).
332. See id.
333. See supra note 40 and accompanying text.
334. See infra notes 443-46 and accompanying text.
335. See supra notes 448-53 and accompanying text. The official order in State v. Lightbourne, No. 81-170-CF-A-01 (Fla. Cir. Ct. July 31, 2007), directed the state to modify its protocol to include qualifications, training, licensure, and credentials for each member of the execution team that is necessary to perform the various technical functions, such as starting intravenous lines, that are part of the lethal injection procedure; setting out the training that shall be required for each of the designated executioners, and specifically training for contingencies that might arise; creating checklists for the [sic] each function performed by execution and technical team members; correcting scrivener's errors; setting time frames and providing for periodic review of the procedures by the Department; providing for certification of the readiness of the Department to carry out an execution; and clearly setting forth in plain language that any observed problems or deviations from the procedure should be brought immediately to the attention of the warden in charge of the execution team. Id. at 3-4. The court ordered a temporary stay of execution and also ordered the state to submit the modified procedures to the court for review. Id. at 4. On September 10, 2007, however, the stay of execution was lifted. State v. Lightbourne, Nos. 1981-170 CF, SC06-2391, slip op. at 5 (Fla. Cir. Ct. Sept. 10, 2007). See also supra notes 26, 42 and accompanying text (discussing Florida's recent lethal injection litigation).
336. See supra note 341 and accompanying text.
337. See Motion to Vacate Sentence or Stay Execution, State v. Schwab, No. 91-7249-CF-A (Fla. Cir. Ct. Aug. 15, 2007).
338. Id.
339. Id.
340. See Third Amended Complaint for Equitable and Injunctive Relief [42 U.S.C. sec. 1983], supra note 22, at 14 (criticizing the May 15, 2007, version of California's protocol Procedure 770).
341. Id.
342. See, e.g., Evans v. Saar, 412 F. Supp. 2d 519, 522 (D. Md. 2006) ("Circuit after Circuit (including the Fourth) has ruled that the [same lethal injection protocol that Maryland uses] does not run afoul of the Eighth Amendment."); Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 306-07 (Tenn. 2005) (noting that Tennessee used the method employed by the vast majority of the states, which had not been held unconstitutional), aff'd, 181 S.W.3d 292 (Tenn. 2005), cert. denied, 126 S. Ct. 2288 (2006). Indeed, most recently, this argument was raised in Tennessee in the context of a governor-appointed protocol committee whose purpose was to review the "pros" and "cons" of the state's three-drug protocol. Harbison v. Little, No. 3:06-01206, slip op. at 3-6 (M.D. Tenn. Sept. 19, 2007). A key "pro" for retaining the three-drug regime was that "[o]ther states do it." Id. at 6.
343. See, e.g., Cooey v. Taft, 430 F. Supp. 2d 702 (S.D. Ohio 2006) (staying the execution of a condemned inmate), remanded by Cooey v. Strickland, 479 F.3d 412, (6th Cir. 2007), reh'g denied, 489 F.3d 775 (6th Cir. 2007). In granting the stay, the district judge took note of the stays granted in challenges in California, Missouri, and North Carolina and the mounting evidence questioning the constitutionality of lethal injection protocols. See Cooey, 430 F. Supp. 2d at 706-07.
344. See generally Denno, When Legislatures Delegate, supra note 15, at 100-16.
345. See supra Part II.
346. See Morales v. Hickman, 415 F. Supp. 2d 1037, 1039 (N.D. Cal. 2006), aff'd per curiam, 438 F.3d 926 (9th Cir. 2006), cert. denied, 546 U.S. 1163 (2006).
347. See Denno, When Legislatures Delegate, supra note 15, at 70. For an excellent umbrella analysis of the Supreme Court's response to capital punishment during the last four-plus decades, see James S. Liebman, Slow Dancing with Death: The Supreme Court and Capital Punishment, 1963-2006, 107 Colum. L. Rev. 1 (2007).
348. See Denno, Getting to Death, supra note 15, at 321-48; see also Hill v. McDonough, 126 S. Ct. 2096 (2006) (holding that an inmate can use section 1983 to challenge an execution procedure, but not addressing the substantive claims). This circumstance may change with the Court's September 25, 2007, grant of certiorari in Baze v. Rees, No. 07-5439, 2007 U.S. LEXIS 9066 (U.S. Sept. 25, 2007), amended, No. 07-5439, 2007 U.S. LEXIS 11115 (U.S. Oct. 3, 2007) ("The petition for a writ of certiorari is granted limited to Questions 1, 2, and 3 presented by the petition."). See Petition for a Writ of Certiorari, Baze, 2007 U.S. LEXIS 9066 (No. 07-5439) (requesting the Court's guidance on the proper Eighth Amendment standard for evaluating execution methods).
349. See Hill v. Crosby, 126 S. Ct. 1189 (2006) (granting stay of execution and granting leave to petition for writ of certiorari); Nelson v. Campbell, 540 U.S. 1046 (2003) (granting writ of certiorari for an inmate's section 1983 claim challenging the use of the cut-down procedure in a lethal injection in Alabama). The Supreme Court agreed to hear the Nelson case
350. Nelson, 540 U.S. at 1046 (2003). The Supreme Court granted certiorari on "[w]hether a complaint brought under 42 U.S.C. § 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the procedures for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. § 2254[.]" Id. (internal quotation marks omitted). The state had planned to use a cut-down procedure on the inmate, who had a long history of drug abuse, which involved cutting into the skin to establish intravenous access. See Nelson v. Campbell, 541 U.S. 637, 640-41 (2004).
351. See Nelson, 541 U.S. at 639.
352. See id. at 640, 642-43.
353. See id. at 645-47. 360. See id. at 646-47; see also Berman, supra note 355 (providing a comprehensive and revealing analysis of the Court's path).
354. See Nelson, 541 U.S. at 644. However, the Supreme Court reversed and remanded the case, finding "[t]hat venous access is a necessary prerequisite does not imply that a particular means of gaining such access is likewise necessary." Id. at 645, 651.
355. 126 S. Ct. 2096, 2099 (2006) (finding that inmate could bring a section 1983 claim to challenge the lethal injection procedure; however, the claimant still must prove the elements necessary for the issuance of a stay of execution).
356. See Brown v. Crawford, 408 F.3d 1027 (8th Cir. 2005) (Bye, J., dissenting).
357. Leonidas G. Koniaris et al., Inadequate Anaesthesia in Lethal Injection for Execution, 365 Lancet 1412, 1412 (2005). This article examined the post-execution toxicology reports of forty-nine inmates and concluded that twenty-one of those inmates, or 43%, had levels of anesthesia "consistent with awareness." Id. The authors of the study have since conducted a relatively more reliable analysis of other data, raising further questions about the adequacy and humaneness of the chemical composition used in lethal injections. See Teresa A. Zimmers et al., Lethal Injection for Execution: Chemical Asphyxiation?, 4 Plos Med. 0001 (2007). For a discussion and commentary on the more recent article, see Karen Kaplan, Study Faults Lethal Injection, L.A. Times, Apr. 24, 2007, at A1.
358. After the Lancet study was published, seven prominent medical researchers, in three separate commentaries, responded with a range of criticisms. See Jonathan I. Groner, Mark J.S. Heath, Donald R. Stanski, Derrick J. Pounder, Robyn S. Weisman, Jeffrey N. Bernstein & Richard S. Weisman, Inadequate Anaesthesia in Lethal Injection for Execution, 366 Lancet 1073, 1073-74 (2005). The Lancet study's authors responded in turn. See Teresa A. Zimmers et al., Authors' Reply, 366 Lancet 1074, 1074-76 (2005). While it is beyond the scope of this Article to enter this debate among researchers, it is worthwhile to note both the benefits and drawbacks of the Lancet study and to provide perspective on what utility the study may have had for attorneys litigating lethal injection cases.
359. See, e.g., Rutherford v. Crosby, 438 F.3d 1087 (11th Cir. 2006); Brown v. Crawford, 408 F.3d 1027 (8th Cir. 2005); Timberlake v. Donahue, No. 1:06-CV-1859-RLY-WTL, 2007 WL 141950 (S.D. Ind. Jan. 16, 2007); Crowe v. Head, 426 F. Supp. 2d 1310 (N.D. Ga. 2005); Hill v. State, 921 So. 2d 579 (Fla. 2006); Bieghler v. State, 839 N.E.2d 691 (Ind. 2005).
360. See Brown, 408 F.3d at 1027 (denying a stay of execution for an inmate attempting to challenge Missouri's lethal injection protocol under section 1983). The Eighth Circuit dismissed the inmate's challenge to lethal injection; however, a dissent from the denial of stay cited the Lancet article's findings that executed inmates might not have been anesthetized adequately. Id. at 1028 (Bye, J., dissenting).
361. See Brown v. Crawford, 125 S. Ct. 2289 (2005) (refusing to grant a stay of execution for a Missouri inmate challenging the state's lethal injection protocol). Justice John Paul Stevens dissented from the denial of stay and, in a two-sentence opinion in which Justices Ruth Bader Ginsburg and Stephen Breyer joined, stated that he would grant the stay for the reasons discussed. Id.
362. Id.
363. See Hill v. State, 921 So. 2d 579 (Fla. 2006) (denying challenge to lethal injection with a dissent noting the reasons to have an evidentiary hearing on the issue). The inmate cited the Lancet article in alleging the state's lethal injection protocol could constitute cruel and unusual punishment. Id. at 582.
364. Id. at 582-83 (agreeing with the trial court that the information did not sufficiently call into question the holding in Sims v. State, 754 So. 2d 657 (Fla. 2000), which found that Florida's protocol did not violate the ban on cruel and unusual punishment). One judge would have granted an evidentiary hearing based on the fact that the evidence from The Lancet and supporting affidavit were "totally beyond anything considered by this Court or the trial court in Sims" and the state had failed to rebut the findings. Id. at 586-87 (Anstead, J., concurring and dissenting).
365. See Hill v. Crosby, 126 S. Ct. 2096 (2006).
366. Id.
367. See Hill v. McDonough, 464 F.3d 1256 (11th Cir. 2006) (denying Hill's request for a stay of execution); Hill v. McDonough, No. 4:06-CV-032, 2006 WL 2556938 (N.D. Fla. 2006) (dismissing condemned inmate's section 1983 complaint for unnecessary delay in filing).
368. Sims, 754 So. 2d 657; see Hill, 2006 WL 2556938, at *3 (noting that "[w]hile the Lancet study itself may be relatively new, the factual basis of Hill's claim ... has been raised and disposed of in other cases").
369. See Hill, 464 F.3d at 1259.
370. Id.
371. In re Readoption of N.J.A.C. 10A:23, 842 A.2d 207 (N.J. Super. Ct. App. Div. 2004). The New Jersey court halted executions in the state because the department of corrections had failed to justify proposed regulations for lethal injection, describing some of the regulations as "arbitrary and unreasonable." Id. at 210. For instance, the court stated that the department of corrections had not justified a regulation removing the use of a heart monitor by merely stating that there was no need for an emergency revival cart and that the lethal substances rejected are in fact lethal; rather, the court stated a medical opinion to that effect might be necessary to justify the regulation. Id. at 210-11.
372. Id. at 209.
373. Id. at 211.
374. See id. "Our concern is that [the department of corrections] itself does not have medical expertise, and nothing in the record suggests medical consultation and opinion on the reversibility issue or, indeed, whether there are any appropriate lethal drugs whose effects might be reversible." Id.
375. See Brief of New Jerseyans for Alternatives to the Death Penalty as Amicus Curiae Supporting Petitioner, Hill v. McDonough, 126 S. Ct. 2096 (2006) (No. 05-8794).
376. See Denno, When Legislatures Delegate, supra note 15, at 90-116.
377. See, e.g., Jackson v. Taylor, No. Civ. 06-300-SLR, 2006 WL 1237044 (D. Del. May 9, 2006) ("[I]t was agreed that the Supreme Court's decision in Hill will have a dispositive effect on plaintiffs claims and that staying this litigation is the most prudent course of action."); see also Roane v. Gonzales, No. 05-2337 (D.D.C. Feb. 24, 2006).
378. See supra Introduction.
379. See Beardslee v. Woodford, 395 F.3d 1064, 1067 (9th Cir. 2005), cert. denied, 543 U.S. 1096 (2005); Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004).
380. See Beardslee, 395 F.3d at 1066. Donald Beardslee previously had asserted challenges to both lethal gas and lethal injection. See id. at 1068.
381. See id. at 1070.
382. Id. at 1076 (internal quotation marks omitted).
383. See Morales v. Hickman, 438 F.3d 926, 927 & n.2 (9th Cir. 2006) (citing the district court order), cert. denied, 546 U.S. 1163 (2006).
384. See Morales v. Hickman, No. C-06-219-JF, slip op. at 2 (N.D. Cal. Feb. 21, 2006) (order on defendant's motion to proceed with execution under alternative condition to order denying preliminary injunction).
385. See supra note 352 and accompanying text.
386. See Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035, at *6 (W.D. Mo. June 26, 2006), rev'd, 487 F.3d 1072 (8th Cir. 2007); Brown v. Beck, No. 5.06CT3018 H, 2006 WL 3914717, at *3 (E.D.N.C. Apr. 7, 2006); Diaz v. State, 945 So. 2d 1136, 1144 (Fla. 2006), cert. denied, 127 S. Ct. 850 (2006).
387. Compare Morales v. Tilton, 465 F. Supp. 2d 972, 973 (N.D. Cal. 2006), with Taylor, 2006 WL 1779035, at *1.
388. See Taylor, 2006 WL 1779035, at *1.
389. Id. at *8; see also supra notes 18-19 and accompanying text.
390. See Taylor v. Crawford, 445 F.3d 1095 (8th Cir. 2006) (remanding to the district court). The Eighth Circuit previously had reversed a stay of execution for the inmate that the district judge had ordered to allow for time for evidentiary hearings, which the judge's calendar could not accommodate until after the execution date. Id. at 1097-98. The Eighth Circuit had reassigned the case to a different judge who held limited evidentiary hearings before the execution date. Id. at 1098. However, the Eighth Circuit ruled that the limited evidentiary hearing did not suffice and noted that the Supreme Court's decision to hear the Hill case (which had not yet been decided) militated in favor of remanding the case and giving thirty days for discovery and thirty days for hearings. Id. at 1099.
391. See Taylor, 2006 WL 1779035, at *4.
392. See id. at *4-5.
393. See id. at *5.
394. Id. (emphasis omitted).
395. See id. at *7.
396. See id. at *8.
397. See id. at *7.
398. See id. at *4, *7.
399. See id. at *8; see also Taylor v. Crawford, No. 05-4173-CV-C-FJG (W.D. Mo. Sept. 12, 2006) (order rejecting state's revised protocol).
400. See Taylor, 2006 WL 1779035, at *8.
401. See id. at *9.
402. See id.
403. Affidavit of Terry Moore, Taylor v. Crawford, No. 05-4173-CV-C-FJG (W.D. Mo. July 14, 2006). The three-paragraph letter stated in relevant part the following: You might have seen recent news reports that a federal judge ordered the Missouri Department of Corrections to use the services of a board-certified anesthesiologist when the department executes a condemned prisoner by means of lethal injection. In an effort to comply with this order, we obtained the names of all board-certified anesthesiologists in certain geographical areas. Executions occur at the Eastern Reception, Diagnostic, & Correctional Center in Bonne Terre, Missouri. There is no regular schedule for executions, but they normally occur during the early morning hours on Wednesdays. There are fewer than five executions in a typical year in Missouri. The anesthesiologist would assist with the execution but would not actually administer the lethal drugs. The anesthesiologist would be notified well in advance of each execution and would be compensated for these services. If you think that you might be willing to provide your professional services as an anesthesiologist during executions, please contact me as soon as possible for a brief, confidential discussion. My telephone number is .... Id. at 3.
404. See id. at 1.
405. See Taylor v. Crawford, No. 05-4173-CV-C-FJG (W.D. Mo. Sept. 12, 2006) (order rejecting state's revised protocol).
406. See Brief of Appellants at 51-61, Taylor v. Crawford, No. 06-3651 (8th Cir. Dec. 4, 2006).
407. Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007). In a post-oral argument submission, the State informed our court that it was no longer its intention to utilize the services of Dr. Doe I. Although the State's frequent and solemn prior representations to us and to the district court that it had always used a 5-gram dose of thiopental proved to be erroneous, in this instance we will take the State at its word. Id. at 1077 n.3.
408. Id. at 1084.
409. See Court Declines to Rehear Appeal on Missouri Capital Punishment, N. Y. Times, Aug. 9, 2007, at A11.
410. See Petition for a Writ of Certiorari, Taylor v. Crawford, No. 07-303 (U.S. Sept. 5, 2007), 2007 U.S. WL 2667411.
411. See generally Brown v. Beck, No. 5:06-CT-3018, 2006 WL 3914717 (E.D.N.C. Apr. 7, 2006).
412. See id. The district court found that Willie Brown, Jr., raised sufficient doubts about the constitutionality of his execution that the state needed to address before the execution could proceed. Id. at *8. "Specifically, the Court finds that the questions raised could be resolved by the presence of medical personnel who are qualified to ensure that Plaintiff is unconscious at the time of his execution." Id. The district court gave the state one week in which to respond. Id.
413. See Brown, 2006 WL 3914717, at *8 (ruling that North Carolina could proceed with the execution because it had taken sufficient precautions to make sure the inmate was unconscious through the use of the monitoring device).
414. See id.
415. See Brown v. Beck, 445 F.3d 752 (4th Cir. 2006).
416. See id. at 754 (Michael, J., dissenting).
417. Id. at 755.
418. Id. at 756.
419. See N.C. Dep't of Corr., Execution Carried Out Under Current Death Penalty Statute, http://www.doc.state.nc.us/DOP/deathpenalty/executed.htm (last visited Sept. 27, 2007).
420. See Robert Steinbrook, New Technology, Old Dilemma - Monitoring EEG Activity During Executions, 354 New Eng. J. Med. 2525 (2006) (examining the use of bispectral index monitors in executions).
421. See id. at 2526.
422. See id.
423. See id. at 2527.
424. See id.
425. See id. at 2526.
426. See North Carolina v. Holman, No. 97-CRS-49226 (N.C. Super. Ct. Mar. 6, 2007) (canceling the execution until the state could meet the requirements of the statute).
427. N.C. Dep't of Corn v. N.C. Med. Bd., No. 07-CVS-3574, at 5 (N.C. Super. Ct. Sept. 21, 2007) (order granting plaintiffs request for declaratory relief and denying defendant's motion to dismiss) (prohibiting the North Carolina Medical Board "from enforcing the Position Statement and taking disciplinary action against physicians who have participated in or otherwise have been involved in judicial executions by lethal injection" or who will be so involved in the future). For further discussion of this decision, see supra notes 192, 206-07, 256, 268.
428. See Weigl, supra note 247.
429. See Weigl, supra note 41.
430. See id.
431. See Conner v. N.C. Council of State, No. 07 Gov 0238, slip op. at 15 (N.C. Office of Admin. Hearings Aug. 9, 2007).
432. Id. at 8.
433. Id.
434. Id.
435. See Fla. Dep't of Corr., Execution List: 1976 to Present, http://www.dc.state.fl.us/oth/deathrow/execlist.html (last visited Aug. 31, 2007).
436. See id.
437. See Florida Commission Report, supra note 42, at 8.
438. See id.
439. See id. at 8.
440. See Diaz v. State, 945 So. 2d 1136, 1144 (Fla. 2006), cert. denied, 127 S. Ct. 850 (2006).
441. See Fla. Exec. Order No. 06-260 (Dec. 15, 2006), available at http://www.deathpenaltyinfo.org/FloridaExecutiveOrder.pdf (staying all executions after the botched execution of Angel Diaz).
442. See Florida Commission Report, supra note 42, at 3-4.
443. See id. at 9-13.
444. See id. at 8.
445. See id. at 15.
446. Id.
447. See supra notes 25-26 and accompanying text.
448. See supra notes 26, 42 and accompanying text.
449. See supra notes 26, 42, 341 and accompanying text. The Florida judge has since concluded that Florida's execution protocol is constitutional. State v. Lightbourne, Nos. 1981-170 CF, SC06-2391, slip op. at 5 (Fla. Cir. Ct. Sept. 10, 2007).
450. Sheila Burke, Progress of Execution Rules Disputed; State Says Workman to Die May 9 as Scheduled, Tennessean, Apr. 6, 2007, at B1.
451. Jared Allen, Critics Say 90-Day Execution Review Unrealistic, Inadequate, Nashville City Paper, Apr. 6, 2007, at 7.
452. Id. (quoting Michael Passino, a Nashville attorney).
453. See id.
454. Workman v. Bredesen, 486 F.3d 896, 911 (6th Cir. 2007), cert. denied, 127 S. Ct. 2160 (2007) ("Having refused to challenge the old procedure on a timely basis, [Workman] gets no purchase in claiming a right to challenge a better procedure on the eve of his execution."). However, the dissent noted that the court declined to stay the execution for review despite the extensive and detailed allegations . . . tending to show that Tennessee's new lethal-injection protocol will subject him to pain and suffering in violation of the Eighth Amendment; despite . . . testimony from physicians familiar with lethal-injection protocols, medical studies, and evidence from recent botched executions; despite the statements from federal courts across the United States expressing deep skepticism with similar lethal-injection protocols adopted by other states; and despite the deference that an appellate court owes to the judgment of a district court. Id. at 921 (Cole, J., dissenting).
455. Harbison v. Little, No. 3:06-01206, slip op. at 55-56 (M.D. Tenn. Sept. 19, 2007); see also supra notes 20, 27, 285, 309, 333, 334, 348.
456. See Evans v. State, 914 A.2d 25, 80-81 (Md. 2006); Bowling v. Ky. Dep't of Corr., No. 06-CI-00574, slip op. (Ky. Cir. Ct. Nov. 30, 2006) (granting plaintiff summary judgment).
457. Bowling v. Ky. Dep't of Corr., No. 06-CI-00574, slip op. at 8 (Ky. Cir. Ct. Dec. 27, 2006).
458. See Baze v. Rees, 217 S.W.3d 207, 211 (Ky. 2006), reh'g denied, No. 2005-SC-000543-MR, 2007 Ky. LEXIS 98 (Ky. Apr. 19, 2007), cert. granted, No. 07-5439, 2007 U.S. LEXIS 9066 (U.S. Sept. 25, 2007), amended, No. 07-5439, 2007 U.S. LEXIS 11115 (U.S. Oct. 3, 2007) ("The petition for a writ of certiorari is granted limited to Questions 1, 2, and 3 presented by the petition."); see also Petition for a Writ of Certiorari, Baze, 2007 U.S. LEXIS 9066 (No. 07-5439). The petition for a writ of certiorari in Baze posed the following four questions: (I) Does the Eighth Amendment to the United States Constitution prohibit means for carrying out a method of execution that create an unnecessary risk of pain and suffering as opposed to only a substantial risk of the wanton infliction of pain? (II) Do the means for carrying out an execution cause an unnecessary risk of pain and suffering in violation of the Eighth Amendment upon a showing that readily available alternatives that pose less risk of pain and suffering could be used? (III) Does the continued use of sodium thiopental, pancuronium bromide, and potassium chloride, individually or together, violate the cruel and unusual punishment clause of the Eighth Amendment because lethal injections can be carried out by using other chemicals that pose less risk of pain and suffering? (IV) When it is known that the effects of the chemicals could be reversed if the proper actions are taken, does substantive due process require a state to be prepared to maintain life in case a stay of execution is granted after the lethal injection chemicals are injected? Id. at ii-iii.
459. Federal district courts in California and Missouri held execution protocols unconstitutional in 2006. See Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006); Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035, at *8 (W.D. Mo. June 26, 2006), rev'd, 487 F.3d 1072 (8th Cir. 2007). In 2006, governors in three states, Florida, South Dakota, and Tennessee, imposed a moratorium on executions by executive order. See Fla. Exec. Order No. 06-260 (Dec. 15, 2006), available at http://www.deathpenaltyinfo.org/FloridaExecutiveOrder.pdf (staying all executions after a botched execution); An Order Directing the Department of Correction to Complete a Comprehensive Review of the Manner in which the Death Penalty Is Administered in Tennessee, Exec. Order No. 43 (Feb. 1, 2007), available at http://www.tennesseeanytime.org/governor/AdminCMSServlet? action=viewFile&id=969 (placing executions on hold for ninety days); Press Release, S.D. Governor's Office, supra note 54. Courts in other states, Arkansas, Delaware, and Maryland, stayed executions in 2006 and have not had an execution since the stay. See Nooner v. Norris, No. 5:06CV00110 SSW (E.D. Ark. June 26, 2006); Jackson v. Taylor, No. Civ. 06-300-SLR, 2006 WL 1237044 (D. Del. May 9, 2006); Evans v. State, 914 A.2d 25 (Md. 2006). In February 2007, the U.S. District Court for the District of Delaware certified the suit challenging Delaware's lethal injection protocol as a class action lawsuit and joined to the suit the additional fifteen death row inmates. See Jackson v. Danberg, 240 F.R.D. 145, 146 (D. Del. 2007).
460. The U.S. District Court for the Northern District of California issued its opinion holding the state's protocol unconstitutional as implemented on December 15, 2006; the Florida governor issued an executive order halting executions on the same day; and the Maryland Court of Appeals followed on December 19, 2006. See Morales, 465 F. Supp. 2d at 972; Evans, 914 A.2d at 80; Fla. Exec. Order No. 06-260 (Dec. 15, 2006), available at http://www.deathpenaltyinfo.org/FloridaExecutiveOrder.pdf.
461. See Jackson, 240 F.R.D. at 149 (certifying a class action suit challenging Delaware's lethal injection protocol and joining to the suit the additional fifteen death row inmates). 469. An Order Directing the Department of Correction to Complete a Comprehensive Review of the Manner in which the Death Penalty Is Administered in Tennessee, Exec. Order No. 43 (Feb. 1, 2007), available at http://www.tennesseeanytime.org/governor/AdminCMSServlet? action=viewFile&id=969
462. Harbison v. Little, No. 3:06-01206, slip op. at 55-56 (M.D. Tenn. Sept. 19, 2007).
463. For example, the governor of South Dakota signed two bills relating to lethal injection. First, revisions to the lethal injection statute eliminated the reference to "an ultrashort-acting barbiturate in combination with a chemical paralytic agent" and replaced it with the phrase "substance or substances in a lethal quantity." See An Act to Provide for the Substances Used in the Execution of a Sentence of Death and to Allow the Choice of the Substances Used in an Execution Under Certain Circumstances, H.B. 1175, Legis. Assem., 82d Sess. (S.D. 2007) (signed February 23, 2007). Second, a separate bill repealed any mention of physician involvement from the death penalty sections of the statutory code. See An Act to Repeal the Requirement for Physician Involvement in the Execution of a Sentence of Death by Eliminating Certain Specified Roles, H.B. 1160, Legis. Assem., 82d Sess. (S.D. 2007) (signed February 23, 2007).
464. Morales v. Tilton, 465 F. Supp. 2d 972, 974 (N.D. Cal. 2006). While Judge Fogel was referring specifically to California, his views have been echoed by courts and departments of corrections throughout the country. See supra Part IV.
465. See supra Part I.B.2 and accompanying notes.
466. See supra note 180 and accompanying text.
467. See supra notes 193-96 and accompanying text.
468. See supra Part II.
469. See supra notes 53-56 and accompanying text; see also Part IV.
470. See supra notes 40, 42 and accompanying text.
471. See Human Rights Watch, supra note 118, at 7.
472. See supra notes 448-53 and accompanying text.
473. See Florida Commission Report, supra note 42.
474. See supra notes 438-41 and accompanying text.
475. See Letter from Terry J. Collins, supra note 336.
476. Adam Liptak, Trouble Finding Inmate's Vein Slows Lethal Injection in Ohio, N.Y. Times, May 3, 2006, at A16.
477. See Letter from Terry J. Collins, supra note 336.
478. Cooey v. Strickland, 479 F.3d 412, 424 (6th Cir. 2007), reh'g en bane denied, 489 F.3d 775 (6th Cir. 2007).
479. Id. at 424.
480. See supra notes 454-56 and accompanying text.
481. State v. Lightbourne, Nos. 1981-170 CF, SC06-2391, slip op. at 5 (Fla. Cir. Ct. Sept. 10, 2007).
482. See supra note 40 and accompanying text.
483. See New York Commission Report, supra note 61 and accompanying text.
484. See supra notes 80-89 and accompanying text.
485. See Royal Commission Report, supra note 80, at iii.
486. See generally id.
487. Id. at 258. For example, the commission quoted the view of the British Medical Association: "No medical practitioner should be asked to take part in bringing about the death of a convicted murderer. The Association would be most strongly opposed to any proposal to introduce, in place of judicial hanging, a method of execution which would require the services of a medical practitioner, either in carrying out the actual process of killing or in instructing others in the technique of the process." Id.
488. Id. at 259.
489. Id. Such a view conforms to the finding of a recent survey of American physicians, in which nineteen percent of those physicians polled stated that they would be willing to administer drugs in an execution, despite opposition from influential medical societies. See Neil J. Farber et al., Physicians' Willingness to Participate in the Process of Lethal Injection for Capital Punishment, 135 Annals Internal Med. 884, 886 (2001).
490. See supra note 258 and accompanying text.
491. Morales v. Tilton, 465 F. Supp. 2d 972, 974 (N.D. Cal. 2006).
492. Id. at 983.
493. Id.
494. See supra Part IV.B.3.
495. See, e.g., Cooey v. Strickland, 479 F.3d 412, 426-28 (6th Cir. 2007) (Gilman, J., dissenting) (noting that "Ohio is free to periodically change its lethal-injection protocol" but that "information about lethal-injection training, procedures, and procurement falls outside the scope of the Ohio Public Record Law" (internal quotation marks omitted)), reh'g en bane denied, 489 F.3d 775 (6th Cir. 2007).
496. See Roko, supra note 39, at 2812.
497. Morales v. Tilton, 465 F. Supp. 2d 972, 982 (N.D. Cal. 2006) (noting that the governor's office "is in the best position to insist on an appropriate degree of care and professionalism").
498. See Morales v. Tilton, No. C-06-0219-JF (N.D. Cal. Mar. 6, 2007) (order denying without prejudice joint motion for a protective order).
499. See supra notes 463-64 and accompanying text.
500. See supra note 464 and accompanying text.
501. See Conner v. N.C. Council of State, No. 07 Gov 0238, slip op. at 14-15 (N.C. Office of Admin. Hearings Aug. 9, 2007).
502. Morales v. Tilton, 465 F. Supp. 2d 972, 976 (N.D. Cal. 2006) (internal quotation marks omitted).