How lethal injection reform constitutes impermissible research on prisoners

American Criminal Law Review

Volumn 45, Issue 3, 2008, Pages 1101-1147

  Shah, Seema ^a,b  

^a NATIONAL INSTITUTES OF HEALTH   (United States)

^b Henry Jackson Foundation for Military Medicine

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[No Author keywords available]

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EID: 46749120985     PISSN: 01640364     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (306)

1. Baze v. Rees, No. 07-5439, slip op. (U.S. Apr. 16, 2008); see also Transcript of Oral Argument, Baze v. Rees, No. 07-5439 (Sept. 25, 2007), available at http://www.supremecourtus.gov/oral_arguments/argument_ transcripts/07-5439.pdf.
2. Prior to the Supreme Court's grant of certiorari in Baze, lethal injections were halted in California, Delaware, Florida, Maryland, Missouri, North Carolina, Ohio, Tennessee, Texas, and the federal system. Additionally, the Eighth Circuit lifted stays in Arkansas and Missouri, but reinstated them as a result of Baze. See Death Penalty in Flux, DEATH PENALTY INFORMATION CENTER, Apr. 10, 2008, http://www.deathpenaltyinfo.org/article.php?did=2289#exe.
3. See, e.g., Morales v. Tilton, 465 F. Supp. 2d 972, 974 (N.D. Cal. 2006) (discussing California's lethal injection system). Additionally, some states, such as Florida, have attempted to reform lethal injection protocols widiout prior court intervention.
4. See, e.g., GOVERNOR'S COMM'N ON ADMIN, OF LETHAL INJECTION, FINAL REPORT WITH FINDINGS AND RECOMMENDATIONS 9 (2007), available at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/ MoralesTaylorAmicus/15.pdf.
5. Petition for Writ of Certiorari at ii, Baze v. Rees, No. 07-5439 (July 11, 2007), 2007 WL 2781088.
6. Baze, No. 07-5439, slip op. at 13 (indicating that alternative procedures should be employed by states when they are "feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain")
7. Baze, No. 07-5439, slip op. at 1 (Thomas, J., concurring).
8. See infra app. 1 (listings states, regulations governing research with prisoners, and cases requiring reform of lethal injection).
9. Ellyde Roko, Executioner Identities: Toward Recognizing a Right to Know Who is Hiding Beneath the Hood, 75 FORDHAM L. REV. 2791, 2797 (2007).
10. Id.
11. Deborah W. Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 FORDHAM L. REV. 49, 65 (2007)
12. [hereinafter Denno, Lethal Injection Quandary].
13. Id.
14. Id. at 65-66.
15. Id.
16. Id.
17. Denno, Lethal Injection Quandary, supra note 10, at 66-67.
18. Id at 67.
19. Id.
20. Id at 68.
21. 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, 95-96 (2002)
22. [hereinafter Denno, Legislatures Delegate Death].
23. Id. at 97.
24. Denno, Lethal Injection Quandary, supra note 10, at 70-71.
25. Id at 72.
26. Id. at 73.
27. OKLA. DEP'T OF CORR., OKLAHOMA POLICY STATEMENT NO. P-090900, PROCEDURES FOR CARRYING OUT THE DEATH SENTENCE (1977) (on file with author).
28. Denno, Lethal Injection Quandary, supra note 10, at 74.
29. OKLA. DEP'T OF CORR., OKLAHOMA POLICY STATEMENT NO. P-040301-01, PROCEDURES FOR THE EXECUTION OF INMATES SENTENCED TO DEATH, (2006) (on file with author).
30. Ty Alper, Lethal Incompetence: Lethal Injection Litigation is Exposing More Than Torturous Executions, THE CHAMPION, Sept.-Oct. 2006, at 41 ("All states that employ lethal injection do so by injecting inmates with a series of three powerful drugs.");
31. see also Denno, Lethal Injection Quandary, supra note 8, at 55 (discussing California's use of sodium thiopental, pancuronium bromide and potassium chloride). New Jersey previously required that a two-drug combination be used, but has since abolished executions. NJ. STAT. ANN. § 2C:49-2 (repealed 2007) ("[P]unishment shall be imposed by continuous, intravenous, administration until the person is dead of a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent in a quantity sufficient to cause death.");
32. Jeremy W. Peters, Corzine Signs Bill Ending Executions, Then Commutes Sentences of 8, N.Y. TIMES, Dec. 18, 2007, at B3 ("New Jersey is now the first state to repeal the death penalty since the United States Supreme Court set the framework for the modern capital punishment system in 1976.").
33. Denno, Lethal Injection Quandary, supra note 10, at 55, 78.
34. Id. at 55.
35. Id.
36. Id.
37. Denno, Legislatures Delegate Death, supra note 19, at 98.
38. Mark J. S. Heath et al., Inadequate Anesthesia in Lethal Injection for Execution, 366 THE LANCET 1073, 1074 (2005).
39. By contrast to the development of lethal injection protocols in the United States, the Chinese government went through a series of tests of lethal injection protocols on human subjects in order to develop its current system. See Elizabeth Weil, The Needle and the Damage Done, N.Y. TIMES MAGAZINE, Feb. 11, 2007, at 646. Although China's approach may have been ethically suspect, the development of lethal injection protocols in the United States was not based on scientific data, and appears to have developed based on various hypotheses about what might constitute a more humane form of execution.
40. See American Society of Anesthesiologists, Patient Education Brochure: The Medical Specialty of Anesthesiology, http://www.asahq.org/ patientEducation/specialty.htm (last visited Mar. 12, 2008) [hereinafter Patient Education Brochure].
41. Alper, supra note 25, at 41 (emphasis in original).
42. Denno, Lethal Injection Quandary, supra note 10, at 92.
43. Id.
44. Id. at 93.
45. Michael L. Radelet, Some Examples of Post-Furman Botched Executions, DEATH PENALTY INFORMATION CENTER, May 24, 2007, http://www.deathpenaltyinfo.org/article.php?scid= 8&did=478.
46. Id. (recounting the August 26,1998 execution of Genaro Ruiz Camacho);
47. see also Denno, Lethal Injection Quandary, supra note 10, at 18 (noting that as of 2006, Ohio conducted the second longest execution by lethal injection ever recorded - a ninety-minute procedure).
48. Denno, Lethal Injection Quandary, supra note 10, at 18 ("Donald Harding's eleven-minute execution and suffocating pain were so disturbing for witnesses that one reporter cried continuously.").
49. Andrew Welsh-Huggins, Inmate Sought Injection Alternative During Execution, CHI. TRIB., May 12, 2006, at C6.
50. Id.
51. Id.
52. Woman Sues U.S. Prison Over Son's 86-minute Execution, AGENCE FRANCE PRESSE, July 3, 2007, available at http://rawstory.com/news/afp/Woman_sues_US_prison_over_son_s_86_07032007. html.
53. Id.
54. Welsh-Huggins, supra note 43, at C6.
55. Gary Fineout, Executioners Missed Vein with Lethal Cocktail, Report Says, MIAMI HERALD, Dec. 15, 2006.
56. Chris Tisch, Doctor: Execution flawed at start, ST. PETE. TIMES, Feb. 13, 2007, at 1B.
57. Id.
58. Id.
59. Id.
60. Botched Execution Spurs State Changes, CHI. TRIB., Aug. 5, 2007, at C10.
61. Tisch, supra note 50, at 1B.
62. Morales v. Tilton, 465 F. Supp. 2d 972, 980-81 (N.D. Cal. 2006).
63. Id.
64. ROBERT J. LEVINE, ETHICS AND REGULATION OF CLINICAL RESEARCH 3 (2d ed. 1986).
65. Id.
66. See id.
67. Ezekiel J. Emanuel, et al., What Makes Clinical Research Ethical?, 283 JAMA 2701, 2701 (2000).
68. Id.
69. Christine Grady, Quality Improvement and Ethical Oversight, 146 ANNALS INTERNAL MED. 680, 680 (2007).
70. Id.
71. (citing 45 C.F.R. § 46.102(d) (2008)).
72. See J. Lynn et al., The Ethics of Using Quality Improvement Methods in Health Care, 146 ANNALS INTERNAL MED. 666, 669-70 (2007) (noting that "if a QI activity is designed both to improve local care and to produce broadly generalizable knowledge, it is both QI and research," and further stating that "[i]f that activity has participants who meet the definition of human subjects, it is both QI and human subjects research and the regulations treat it as human subjects research");
73. Bernard Lo & Michelle Groman, Oversight of Quality Improvement, 163 ARCHIVES INTERNAL MED. 1481, 1481 (2003) ("[T]he term quality improvement is used to refer to a broad range of projects, which vary widely in the potential benefits and risks to participants and which overlap with research.") (emphasis in original).
74. See Grady, supra note 63, at 680 ("[G]reat care and attention are required for any activity whose purpose extends beyond what is directly needed for the care of an individual patient and that might add burden or incur risk.").
75. Baze v. Rees, No. 07-5439, slip op. at 7 (U.S. Apr. 16, 2008) (Stevens, J., concurring in judgment)
76. (quoting Transcript of Public Hearing on Proposed Amendments to the New Jersey Lethal Injection Protocol 36 (Feb. 4, 2005)).
77. Transcript of Oral Argument, Baze v. Rees, supra note 1, at 16.
78. See AMA Opposes Physician Involvement in Executions, U.S. NEWSWIRE, Feb. 17 2006, available at http://www.ama-assn.org/ ama/pub/category/16007.html ("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.").
79. See, e.g.,
80. id.; AM. NURSES ASS'N COMM. ON ETHICS, ETHICS AND HUMAN RIGHTS POSITION STATEMENTS: NURSES' PARTICIPATION IN CAPITAL PUNISHMENT (1994), available at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjectionDocuments/ Professional%20Associations/ANA%20Position%20Statement_%20Nurses'% 20Participation%20in%20Capital%20Puni...pdf;
81. ORIN F. GUIDRY, MESSAGE FROM THE PRESIDENT: OBSERVATIONS REGARDING LETHAL INJECTION (2006), available at http://www.asahq.org/news/ asanews063006.htm;
82. NAT'L ASS'N OF EMERGENCY MED. TECHNICIANS, POSITION STATEMENT ON EMT AND PARAMEDIC PARTICIPATION IN CAPITAL PUNISHMENT (2006), available at http://www.naemt.org/aboutNAEMT/ capitalpunishment.htm.
83. Baze, No. 07-5439, slip op. at 4 (Alito, J., concurring).
84. See Denno, Lethal Injection Quandary, supra note 10, at 60.
85. Morales v. Tilton, 465 F. Supp. 2d 972, 972-73 (N.D. Cal. 2006). Judge Fogel previously denied a stay in the case but required that medical professionals trained in anesthesia be present at the execution. This was appealed, and the Ninth Circuit further required that these medical professionals intervene and aid with the execution in the event something went wrong. Morales v. Hickman, 438 F.3d 926, 931 (9th Cir. 2006). In response, the American Medical Association issued a statement that it would be unethical for physicians to participate in the administration of lethal drugs during an execution.
86. See AMA Opposes Physician Involvement in Executions, supra note 69 ("The American Medical Association (AMA) is alarmed that Judge Jeremy Fogel has disregarded physicians' ethical obligations when he ordered procedures for physician participation in executions of California inmates by lethal injection.") Because no physicians could be found to participate in the execution after this directive. Morales' execution was effectively stayed indeterminately. The December 15 ruling has suggested an approach the State can take to reform the lethal injection system, and the State has subsequently devised a new protocol attempting to comply with the court's ruling.
87. Id. at 980.
88. Id. at 981.
89. Id. at 983-84.
90. Id. at 979.
91. Id.
92. Morales v. Tilton, 465 F. Supp. 2d 972, 979 (N.D. Cal. 2006).
93. Id. at 975
94. (citing Morales v. Hickman, 415 F. Supp.2d 1037 (N.D. Cal. 2006)).
95. Id. at 983-84.
96. STATE OF CALIFORNIA, SAN QUENTIN OPERATIONAL PROCEDURE NO. 0-770-1: EXECUTION BY LETHAL INJECTION III.A (2007), available at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjectionDocuments/ California/Morales/Morales%20Dist%20Ct/2007.05.15%20protocol%20review.pdf [hereinafter CALIFORNIA PROCEDURES 2007].
97. Id. at I.B.1,V.A.1.a.
98. Henry Weinstein, Judge Bars New Plan for Executions: The Jurist Rules that State Broke the Law by not Seeking Public Comment or Independent Review, L.A. TIMES, NOV. 1, 2007, at B3. Incidentally, Judge Fogel has also stayed the proceedings in Morales, pending the outcome of the Supreme Court litigation. Order Granting Parties' Joint Request to Vacate Case-Management Schedule, Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006).
99. CALIFORNIA PROCEDURES 2007, supra note 82, at IV.C.
100. Id. at V.C.1.
101. Id. at V.F.4.
102. Id. at V.F.4.a.5.
103. Id. at V.G.
104. Id. at V.G.4.b.7.
105. CALIFORNIA PROCEDURES 2007, supra note 82, at V.T.5.a.
106. Id. at V.H.2.
107. Id. at V.H.2.e.1.
108. Id. at V.H.2.
109. Id. at V.R.1.c.3. "Antecubital" refers to the "inner or front surface of the forearm." MeRRIAM- WEBSTER MEDICAL DICTIONARY, http://www2.merriam- webster.com/cgi-bin/mwmednlm?book=Medical&va=antecubital.
110. CALIFORNIA PROCEDURES 2007, supra note 82, at V.R.1.c.3.
111. Id. at V.R.7.a.2.
112. Id. at V.R.9.c.1.
113. Id.
114. Id. at V.R.11.b.2.
115. Id. at V.R.11.b.3.b.
116. CALIFORNIA PROCEDURES 2007, supra note 82, at V.S.1.e.4.
117. Id. at V.S.1.e.8.
118. Id. at V.S.1.e.3-5.
119. Id. at V.S.1.e.4.
120. Id. at V.S.1.e.4.e.
121. Id. at V.S.1.e.4.d.
122. CALIFORNIA PROCEDURES 2007, supra note 82, at V.S.1.e.4.e.
123. Id.
124. Id.
125. Id.
126. Id.
127. Id.
128. CALIFORNIA PROCEDURES 2007, supra note 82, at V.S.1.e.4.e.
129. Id.
130. Id.
131. Id. at V.S.1.e.4.h.
132. Id. at V.S.1.e.6.a.
133. Compare CALIFORNIA PROCEDURES 2007, supra note 82, at 48,
134. with STATE OF CALIFORNIA, SAN QUENTIN OPERATIONAL PROCEDURE NO. 0-770-1: EXECUTION BY LETHAL INJECTION 25 (2006) (requiring the injection of 6.5 gm. sodium thiopental, 40 mg. pancuronium bromide, and 240 m.Eq. potassium chloride).
135. See also STATE OF CALIFORNIA, SAN QUENTIN OPERATIONAL PROCEDURE NO. 0-770-1: EXECUTION BY LETHAL INJECTION 26 (2003) (requiring the injection of 5.0 gm. sodium thiopental, 50 mgm. per 50 cc. pancuronium bromide, and 50 ml/Eq potassium chloride).
136. CAL. PENAL CODE § 3502 (West 2007).
137. Roland v. Superior Court, 124 Cal. App. 4th 154, 162 (2004)
138. (citing People v. Lawrence, 25 Cal. 4th 219, 230-31 (2000)).
139. See id. ("If the words are unambiguous "we presume the lawmakers meant what they said and the plain meaning of the language governs.")
140. th 268, 272 (2001)).
141. CAL. PENAL CODE § 3502 (1977), amended by 1985 Cal. Legis. Serv. 1553 (West).
142. CAL. PENAL CODE § 3502 (West 2007).
143. Id;
144. see also CAL. WELF. & INST. CODE § 1706 (West 2007) (providing exception permitting research on wards of the State with regard to nutritional supplements, such as vitamins).
145. People v. Dillon, 668 P.2d 697, 712 (Cal. 1983)
146. (quoting People v. Valentine, 169 P.2d 1, 14 (Cal. 1946)).
147. See, e.g., People v. Corey, 581 P.2d 644, 648 (Cal. 1978) (concluding that by deleting an statutory exception for peace officers engaged in part-time patrol for private employers, the Legislature intended that the statute should apply broadly to all police officers, regardless of whether they were engaged in public or private employment at the time of the violation);
148. Krikorian v. Barry, 242 Cal. Rptr. 312, 315 (Cal. Ct. App. 2d 1987) (determining that the deletion of a qualification regarding mandatory reporters of child abuse "evidences a legislative intention to grant absolute immunity to persons required to report suspected cases of child abuse").
149. 1989 Cal. Legis. Serv. 1367 (West) (amending CAL. PENAL CODE § 3502).
150. CAL. PENAL CODE § 3502.5 (West 2007).
151. Id. § 3502.5(a). 131. 1989 Cal. Stat. 979.
152. CAL. PENAL CODE § 3500(b) (West 2007).
153. Id. §3500(d).
154. Id § 3 500(e).
155. Compare CAL. PENAL CODE §§3500(b), 3502 (West 2007) (describing and prohibiting biomedical research),
156. with CAL. PENAL CODE §§3500(a), 3501, 3505 (West 2007) (describing and permitting behavioral research). In section 3500(a), "behavioral research" is defined as "studies of human behavior, emotion, adaptation, conditioning, and response in a program designed to test hypotheses through the collection of objective data."
157. CAL. PENAL CODE § 3500(a) (West 2007).
158. CALIFORNIA PROCEDURES 2007, supra note 83, at I.A.
159. Id. at I.B.
160. Additionally, the State of California has built a new lethal injection facility at San Quentin that is meant to correct some of the problems that arose in the past. See id. at III.C. This may be another experimental element of the protocol.
161. Roko, supra note 8, at 2799-2800.
162. Id. at 2800.
163. See generally AM. SOC'Y OF ANESTHESIOLOGISTS, STANDARDS FOR BASIC ANESTHETIC MONITORING 1-3 (2005), available at http://www.asahq.org/publicationsAndServices/standards/02.pdf.
164. Id. at 1.
165. See generally Patient Education Brochure, supra note 35.
166. CAL. PENAL CODE § 3500(d) (West 2007).
167. See id § 3500(b).
168. Morales v. Tilton, 465 F. Supp. 2d 972, 983-84 (N.D. Cal. 2006) (noting that a large enough dose of the anesthetic would likely be the most effective and painless way to cause death).
169. See Denno, Lethal Injection Quandary, supra note 10, at 67.
170. CALIFORNIA PROCEDURES 2007, supra note 82, at V.S.1.e.4.e.
171. See Denno, Legislatures Delegate Death, supra note 19, at 109-10
172. (quoting Thomas O. Finks, Lethal Injection: An Uneasy Alliance of Law and Medicine, 4 J. LEGAL MED. 383, 397 (1983)).
173. See Radelet, supra note 40.
174. Although the State of California is attempting to keep elements of the new protocols and changes secret, see, e.g., State Motion for a Protective Order for the Deliberative Process of Producing a New Lethal Injection
175. Protocol, Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006), which would prevent the public dissemination of information that typically constitutes research, it is not clear that this secrecy is constitutional. However, there is a historic right of access to judicial proceedings that requires some degree of publicity for criminal proceedings. In Richmond Newspapers v. Virginia, the United States Supreme Court found that "[t]o work effectively, it is important that society's criminal process 'satisfy the appearance of justice,' and the appearance of justice can best be provided by allowing people to observe it." 448 U.S. 555, 571-72 (1980). Moreover, the Court noted that the First Amendment disfavors governmental limitations on the dissemination of information.
176. Id. at 575-76 ("[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.") (quoting First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978)).
177. In the case of Globe Newspaper Co. v. Superior Court, the Court allowed some restrictions on public access to trial proceedings provided that the State demonstrate a compelling reason for secrecy and that the closure of proceedings to the public is narrowly tailored to serving that compelling reason. 457 U.S. 596, 613 (1982). Additionally, the Ninth Circuit has explained that, "[i]ndependent public scrutiny - made possible by the public and media witnesses to an execution - plays a significant role in the proper functioning of capital punishment. An informed public debate is critical in determining whether execution by lethal injection comports with 'the evolving standards of decency which mark the progress of a maturing society."' Cal. First Am. Coalition v. Woodford, 299 F.3d 868, 876 (9th Cir. 2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). The constitutional considerations favoring public access and scrutiny regarding capital punishment weigh in favor of ensuring public access to information about lethal injection protocols to enable appropriate public scrutiny. Thus, the outcomes of the process of refining lethal injection protocols will likely be disseminated to the public, as research results typically are.
178. CAL. PENAL CODE § 3502.5(a) (West 2007).
179. 1989 Cal. Stat. 979.
180. CAL. PENAL CODE § 401 (West 2007) ("Every person who deliberately aids, or advises, or encourages another to commit suicide, is guilty of a felony.");
181. see also Washington v. Glucksberg, 521 U.S. 702, 715 (1997) (noting that most Western democracies have a blanket prohibition on active euthanasia and that California has banned assisted suicide since 1874);
182. Vacco v. Quill, 521 U.S. 793, 796 (1997) (noting that "[i]n New York, as in most States, it is a crime to aid another to commit or attempt suicide").
183. CAL. PENAL CODE § 3604 (West 2007).
184. Ellen Kreitzberg & David Richter, But Can it Be Fixed? A Look at Constitutional Challenges to Lethal Injection Executions, 47 SANTA CLARA L. REV. 445, 477 (2007).
185. Id. at 447-48.
186. Tisch, supra note 50.
187. THE GOVERNOR'S COMM'N ON ADMIN, OF LETHAL INJECTION, FINAL REPORT WITH FINDINGS AND RECOMMENDATIONS (2007), available at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjectionDocuments/Florida/ lethalinjectionfinalreport.pdf [hereinafter GOVERNOR'S FINAL REPORT].
188. Id.
189. Id. at 8.
190. Id. at 9.
191. Id. at 10.
192. Id. at 11.
193. GOVERNOR'S FINAL REPORT, supra note 159, at 13.
194. FLORIDA DEPARTMENT OF CORRECTIONS, EXECUTION BY LETHAL INJECTION PROCEDURES (2007), available at http://www.law.berkeley.edu/clinics/dpclinic/ LethalInjectionDocuments/Florida/DOC/ August%201%202007%Lethal%20Injection%20Protocol.pdf.
195. Id. at 4.
196. Id.
197. Id. at 5.
198. Id.
199. Id. at 6-7.
200. Id. at 14.
201. Id.
202. Lethal injection litigation in Florida circuit courts has suggested that there is a further need for modifications to the Department of Corrections' revised protocol. Order granting temporary stay, State v. Lightbourne, No. 81-170-CF-A-01 (Fla. Cir. Ct. July 31, 2007);
203. but see Order denying defendant's all writs petition to declare Florida's lethal injection procedure unconstitutional, State v. Lightbourne, No. 81-170-CF-A-01 (Fka. Cir. Ct. Sept. 10, 2007).
204. FLA. ADMIN. CODE ANN. R. 4-4402 ("No offender in the custody of or under the supervision of the department will be utilized for medical, cosmetic or pharmaceutical experimental testing or any other health-related experimental procedure. This does not preclude individual treatment of an offender based on her/his need for a specific medical procedure that is not generally available.") (4-4402, 4-ACRS-4C-20, Dept. of Corrections Procedure no. 207-001(12)).
205. Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931)).
206. FLA. ADMIN. CODE ANN. R. 4-4402.
207. Knowles v. Beverly Enters.-Fla., Inc., 898 So. 2d 1, 8 (Fla. 2004).
208. Id.
209. FLA. STAT. § 922.105 (2007).
210. Transcript of Oral Argument, Baze v. Rees, supra note 1.
211. Brief for Respondents at 12-13, Baze v. Rees, No. 07-5439 (Dec. 3, 2007), 2007 WL 4244686.
212. Id. at 4.
213. Baze v. Rees, 217 S.W.3d 207, 211 (Ky. 2006).
214. Transcript of Oral Argument, Baze v. Rees, supra note 1, at 29.
215. Brief for Respondents, Baze v. Rees, supra note 182, at 6.
216. Brief for Petitioners at 26, Baze v. Rees, No. 07-5439 (Nov. 5, 2007), 2007 WL 3307732.
217. Baze v. Rees, No. 07-5439, slip op. at 5 (U.S. April 16, 2008).
218. Id. at 6.
219. Id. at 6 (Ginsburg, J., dissenting).
220. KY. REV. STAT. ANN. § 431.220 (West 2008).
221. Id. (1)(b).
222. Id.
223. Id. (3).
224. KENTUCKY DEPT. OF CORRECTIONS, RESEARCH AND SURVEY PROJECTS POLICY NO. 5-1 (2005) (on file with author).
225. Id.
226. Id.
227. See Evans v. State, 914 A.2d 25, 80-81 (Md. 2006);
228. Order Granting John Spirko's Motion to Intervene and Denying Motion for Preliminary Injunction at 1, Cooey v. Taft, No. 04-1156 (S.D. Ohio Nov. 22, 2006), 2007 U.S. Dist. LEXIS 65480;
229. Order at 3, Brown v. Beck, No. 5:06-3018 (E.D.N.C. Apr. 7, 2006), 2006 U.S. Dist. LEXIS 60084;
230. Monica Davey, Execution in South Dakota, Delayed a Year by Debate on Method, Is First in Six Decades, N.Y. TIMES, July 13, 2007;
231. Leslie Schulman, Tennessee Resumes Lethal Injection Executions after Moratorium Expires, JURIST, May 9, 2007, available at http://jurist.law.pitt.edu/paperchase/2007/05/tennessee-resumes-lethal- injection.php.
232. See infra app. 1.
233. See, e.g., Hughes v. Ohio Dep't of Commerce, 868 N.E.2d 246, 250 (Ohio 2007);
234. Matter of Sales Tax Refund Applications of Black Hills Power & Light Co., 298 N.W.2d 799, 802 (S.D. 1980);
235. Malloy v. Zoning Bd. of Adjustment, 573 S.E.2d 760, 762 (N.C. Ct. App. 2002);
236. Wells v. Tenn. Bd. of Regents, 231 S.W.3d 912, 916 (Tenn. 2007);
237. Carroll v. Konits, 929 A.2d 19, 34 (Md. 2007).
238. Carson Walker, First S.D. Execution Looms in Decades, ASSOCIATED PRESS ONLINE, July 11, 2007;
239. see also Gov. Rounds Issues Statement on the Stay of Execution for Elijah Page, S.D. STATE NEWS, available at http://www.state.sd.us/news/printDoc.aspx?i=7722.
240. S.D. CODIFIED LAWS § 23A-27A-32 (2007). This inconsistency was also challenged by inmate Donald Moeller in a habeas petition. Moeller v. Weber, 523 F. Supp.2d 975 (S.D.S.D. 2006).
241. Davey, supra note 198.
242. S.D. CODIFIED LAWS § 23A-27A-32 (2007).
243. Id.
244. Id. (emphasis added). Notably, research is expressly not the practice of medicine.
245. Brown v. Beck, 445 F.3d 752, 754 (4th Cir. 2006) (Michael, J., dissenting).
246. See Third Affidavit of Dershwitz, Brown v. Beck, No. 5:06-03018, at ¶11 (E.D.N.C. Apr. 12, 2006).
247. Dershwitz Rebuttal report, Walker v. Johnson, No. 05-934, at 5 (E.D. Va. Feb. 3, 2006).
248. Id. at 10.
249. Id. at 15.
250. Id. at 12.
251. Id.
252. Id.
253. Id. at 13.
254. Id. at 15.
255. Order at 5, N.C. Dep't of Corr. v. N.C. Med. Bd., No. 07-CVS-3574 (N.C. Sept. 21, 2007). Interestingly, although the court noted that physician participation was crucial to the administration of lethal injection, the court also determined that "[a] judicial execution is not a medical event or medical procedure."
256. Id.
257. See N.C. DEP'T OF CORR., CONDUCTING RESEARCH WITHIN THE NORTH CAROLINA DEPARTMENT OF CORRECTION, available at http://www.doc.state.nc.us/rap/ ResearchGuidelines.pdf (Aug. 30, 2007).
258. 45 C.F.R.§ 46.102(d) (2007).
259. Id.
260. Id. § 46.102(c), (j).
261. Id. § 46.305(a)(3).
262. Additionally, the Federal Regulations regulating prisoner research state that "Procedures for the selection of subjects within the prison are fair to all prisoners and immune from arbitrary intervention by prison authorities or prisoners." Id. § 46.305(a)(4). Thus, an equal protection challenge alleging that the death penalty is being unfairly implemented could also support allegations that the lethal injection protocol violates the regulation requiring equitable selection of prisoners.
263. Evans v. State, 914 A.2d 25, 80-81 (Md. 2006).
264. Jeannie Shawl, Maryland High Court Rules Lethal Injection Procedures Subject to Public Review, JURIST, Dec. 19, 2006, available at http://jurist.law.pitt.edu/paperchase/2006/12/maryland-high-court-rules- lethal.php.
265. For this example and others see Allen M. Hornblum, They Were Cheap and Available: Prisoners as Research Subjects in Twentieth Century America, 315 BRIT. MED. J. 1437 (1997), available at http://www.bmj.com/cgi/content/full/315/720/1437?ijkey= b58ac42465f33c5c9a41f9fb3d63ac1662dd6fa0&keytype2=tf_ipsecsha#R33.
266. Lawrence O. Gostin, Biomedical Research Involving Prisoners: Ethical values and legal regulation, 297 JAMA 737, 737 (2007).
267. Id.
268. Beginning in 1932, the United States Public Health Service (PHS) conducted a forty-year study of the long-term effects of syphilis. The PHS drew its subjects from poor African-American men afflicted with the disease, but failed to inform any of the 399 participants about their diagnosis, the possibilities for treatment, or what they could do to prevent transmitting the disease to others. When the study began, the available treatments were toxic and of questionable efficacy. However, in 1947, treatment by penicillin became the standard of care to cure the diseases. The researchers continued with the study in order to obtain data they knew they could not obtain otherwise, and even thwarted efforts by the study participants to obtain treatment. In 1972, the story was leaked to the press, and the study was finally terminated. Amy L. Fairchild & Ronald Bayer, Uses and Abuses of Tuskegee, 284 SCIENCE 919, 919 (1999).
269. Hornblum, supra note 226, at 1437.
270. NAT'L COMM'N FOR THE PROT. OF HUMAN SUBJECTS OF BIOMEDICAL & BEHAVIORAL RESEARCH, RESEARCH INVOLVING PRISONERS 3 (1976), reprinted in 42 Fed. Reg. 3076-77 (1977).
271. Gostin, supra note 227, at 737. Additionally, the National Commission for the Protection of Human Subjects in Biomedical and Behavioral Research was formed in the mid 1970s to make recommendations for research regulations. The National Commission developed recommendations that ultimately resulted in regulations to protect children, pregnant women, and prisoners. 45 C.F.R. 46 (2005).
272. Significantly, there could be collateral harm from research on lethal injection being performed on death row prisoners. African-American distrust of research and the medical profession is well-documented. See J. Wasserman, M. A. Flannery, and J.M. Clair, Raising the Ivory Tower: The Production of Knowledge and Distrust of Medicine Among African Americans, 33 J. OF MED. ETHICS 177, 177-80 (2007). Additionally, African-Americans are disproportionately represented on death row.
273. See generally U.S. DEP'T OF JUSTICE, THE FEDERAL DEATH PENALTY SYSTEM: A STATISTICAL SURVEY (1988-2000) (2000) [hereinafter DEATH PENALTY STATISTICAL SURVEY]. Thus, the fact that departments of corrections are conducting research in which a greater burden of risk is being borne by African-American defendants may exacerbate the distrust that many African-Americans feel towards research and the practice of medicine.
274. See generally Ezekiel J. Emanuel, David Wendler, & Christine Grady, What Makes Clinical Research Ethical?, 283 JAMA 2701 (2000). The other two principles are independent review and respect for subjects. Although courts may not have expertise in review of human subjects research, they do provide an important check on lethal injection reform efforts. For the purposes of this Article, I have assumed that courts are providing independent review sufficiently carefully to address this principle. With regard to the principle of respect for persons, this principle has been applied to allowing subjects to withdraw from research, protecting privacy through confidentiality, informing subjects of newly discovered risks or benefits, and maintaining subjects' welfare. Permission to withdraw is not an option for inmates who have been convicted of the death penalty, as is protection of their privacy. Informing inmates of risks and benefits overlaps with the category of informed consent, which is discussed in the text. Failure to maintain the welfare of subjects is a clear problem for lethal injection, but it is a problem for the conduct of lethal injection in general, and not a problem for lethal injection research as such. Therefore, I have only discussed five of the seven principles in the text.
275. Brief for Respondents, Baze v. Rees, supra note 182, at 50.
276. John Concato, Nirav Shah, & Ralph I. Horwitz, Randomized Controlled Trials, Observational Studies, and the Hierarchy of Research Designs, 342 NEW ENG. J. MED. 1887, 1890 (2000).
277. See generally Mark J. Heath, et al., Inadequate Anesthesia in Lethal Injection for Execution, 366 LANCET 1073 (2005).
278. See generally DEATH PENALTY STATISTICAL SURVEY, supra note 232;
279. see also Baze v. Rees, No. 07-5439, slip op. at 16 (Stevens, J., concurring) (citing McClesky v. Kemp, 481 U.S. 279 (1987);
280. Evans v. State, 396 Md. 256, 323 (2006)) (discussing the risk of discriminatory application of the death penalty).
281. Alley v. Little, 447 F.3d 976 (6th Cir. 2006) (Martin, J., dissenting from denial of a rehearing en banc).
282. See Order granting motion to intervene at *2-3, 5, Thompson v. Woodford, No. 79-01630 (N.D. Cal. Apr. 6, 2006), 2006 U.S. Dist. LEXIS 20155 (allowing a death row inmate to challenge a violation of his right to Due Process regarding prisoner classifications).
283. See Lancaster v. Tilton, No. 79-01630, 2008 U.S. Dist. LEXIS 11702, at *10-11 (N.D. Cal. Feb. 15, 2008) (noting that prison officials have a duty to "keep[] dangerous men in safe custody under humane conditions" and finding that prison officials had not met their burden to dismiss claims brought by death row inmates regarding "cleaning supplies, shower cleaning, noise, and rodents and vermin" on death row).
284. Brief for Respondents, Baze v. Rees, supra note 183, at i. The questions before the Supreme Court were: 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?
285. Baze, No. 07-5439, slip op. at 13.
286. Id. at 1 (Thomas, J., concurring).
287. Baze v. Rees, No. 07-5439, slip op. 11 (U.S. Apr. 16, 2008) (Ginsburg, J., dissenting);
288. see also id. at 1 (Breyer, J, concurring in judgment).
289. Id. at 4 (Ginsburg, J., dissenting).
290. Id. at 13 (Thomas, J., concurring).
291. Id. at 22 (majority opinion of Chief Justice Roberts).
292. Transcript of Oral Argument, Baze v. Rees, supra note 1, at 51.
293. DEATH PENALTY INFORMATION CENTER, http://www.deathpenaltyinfo.org/state/ (last visited Apr. 16, 2008).
294. KY. REV. STAT. ANN. § 431.220(3) (West 2008).
295. Baze v. Rees, No. 07-5439, slip op. 1 (U.S. Apr. 16, 2008) (Stevens, J., concurring).
296. But see Fierro v. Gomez, 77 F.3d 301, 309 (9th Cir. 1996) (determining that "[t]he district court's findings of extreme pain, die length of time this extreme pain lasts, and the substantial risk that inmates will suffer this extreme pain for several minutes require the conclusion that execution by lethal gas is cruel and unusual"), vacated, Gomez v. Fierro, 519 U.S. 918 (1996).
297. See Michael Madow, Forbidden Spectacle: Executions, the Public, and the Press in Nineteenth Century New York, 43 BUFF. L. REV. 461, 486-90 (1995).
298. See, e.g., CAL. PENAL CODE § 3500 (West 2008) (prohibiting research on prisoners relating to "physical science").
299. Baze No. 07-5439, slip op. at 13 (Thomas, J., concurring).
300. See e.g., Denno, Lethal Injection Quandary, supra note 10, at 118-20.
301. It is not clear how conducting research on different methods of administering lethal injection in prisoners could meet with the prohibition on cruel and unusual punishment. For one thing, it may be prohibitively difficult to obtain informed consent for prisoners to participate in such research.
302. See supra note 70 and accompanying text.
303. See, e.g., J. Bruhn, et al., Depth of Anesthesia Monitoring: What's Available, What's Validated, and What's Next, 97 BRIT. J. ANESTHESIA 85, 86 (2006) (noting that incidence of awareness under anesthesia is alarmingly high and ranges from 0.13% to 0.18% in adults);
304. AM. SOC'Y OF ANESTHESIOLOGISTS TASK FORCE ON INTRAOPERATIVE AWARENESS, PRACTICE ADVISORY FOR INTRAOPERATIVE AWARENESS AND BRAIN FUNCTION MONITORING 1 (2005) (reporting an intraoperative awareness rate of 0.1-0.2% in all surgical patients), available at http://www.asahq.org/publicationsAndServices/ AwareAdvisoryFinalOct05.pdf.
305. Johanna H. Groenewoud, et al., Clinical Problems with the Performance of Euthanasia and Physician-Assisted Suicide in the Netherlands, 342 NEW ENG. J. OF MED. 551, 554 tbl.3 (2000).
306. COMM. ON ETHICAL CONSIDERATIONS FOR REVISIONS TO DHHS REGULATIONS FOR PROTECTION OF PRISONERS INVOLVED DM RESEARCH, ETHICAL CONSIDERATIONS FOR RESEARCH INVOLVING PRISONERS (2006).