Fentanyl and the Death Penalty

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Photo by Kurt Morrow via Flickr

Even as law enforcement tries to reduce the number of deaths attributed to the super-opioid fentanyl, some states are trying to increase them through their use for capital punishment.

In the United States, capital punishment is mostly a matter of state law, so long as it doesn’t violate the Constitution’s ban on “cruel and unusual punishment.”

There is no accepted legal definition of what “cruel and unusual” means, but that doesn’t seem to be the real concern.

We don’t seem to care much about whether the convict suffers, but whether he (or she) appears to have suffered. We appear to be more concerned with whether the officials conducting the execution and the witnesses are so disturbed by what they see that they suffer post-traumatic stress disorder or, worse, start to advocate for the abolition of the death penalty.

Most nations of the world already have abolished capital punishment—including Canada, most of Latin America and Europe—and that has created a problem in the U.S.

Lethal injection—a cocktail of different drugs—is the most common means of execution in the U.S., but many of the drugs used in that cocktail come from pharmaceutical companies based outside the country, and/or who do not wish for their products to be used to kill.

Recently, Nebraska got around this problem by replacing one of the hard-to-get drugs with fentanyl. The notorious opioid—reputedly 50 times or more stronger than heroin and even maybe (maybe not) deadly to the touch—has been implicated in many accidental overdose deaths, including Tom Petty and Prince.

If it can kill you when you’re not trying, it must be pretty damn lethal.

While Nebraska was the first state to use fentanyl in an execution, Nevada sought that distinction in July. (It was blocked by concerns about one of the other drugs in the cocktail.)

One of the first proponents of lethal injection as a more humane method of execution was Ronald Reagan while he was governor of California. In 1973, with the death penalty temporarily ruled unconstitutional—the Supreme Court deemed the gas chamber cruel and unusual—Reagan speculated that an execution could be conducted with a hypodermic needle, like a veterinarian putting down a horse with a broken leg: “the vet gives it a shot, and the horse goes to sleep—that’s it.”

Except it was never administered that way.

Instead, states have adopted a “cocktail” approach that combines three or more types of drugs: an anesthetic so the condemned goes to sleep; then a paralytic, so the criminal can’t move (or maybe breathe); followed by poison to stop the heart. In Nebraska’s execution, fentanyl was one of four drugs.

Fentanyl was responsible for up to 40 percent of the deaths by drug overdose in 2017—deaths that could have been prevented if people with a heroin addiction had gotten into an inpatient heroin rehab before they tried fentanyl.

The idea of using that drug for official executions seems wrong, and maintaining legal capital punishment in this politically correct nation largely depends upon keeping up appearances.

We have a lot of purported reasons for the death penalty but they don’t hold up under scrutiny:

  • Justice? Not when those being executed are most often from the poor and/or minority populations who couldn’t afford a better attorney and might even be innocent (as later DNA exonerations have demonstrated).
  • Deterrence? No. One study found that nine out of 10 criminologists don’t believe executions deter murderers. A 2017 analysis published by The Huffington Post found that 80 percent of the 25 states with the highest murder rates also had the death penalty, while 56 percent of the 25 states with the lowest murder rates had no death penalty. That doesn’t prove a correlation, but if there is one, then it is that the death penalty increases the murder rate.
  • Cost? It is more expensive—four to 10 times as much—to execute a criminal than to lock him or her up for life.

The only reason that holds up under the facts is vengeance (a less praiseworthy motive than justice): the belief that for some crimes, you should pay with your life and maybe be seen paying with your life.

Public execution used to be the norm and was even a spectator sport and an occasion for a social gathering. Take along a picnic, buy a program or a souvenir. Seating was available, with better views for those who could pay for them.

Today, the crowds are smaller and more squeamish.

We want our executions (if we want executions at all) to be quick, painless and antiseptic. Most people can’t bear to see chickens or cattle slaughtered. Execution is that much less palatable:

  • Hanging. The problem, by modern standards, is that unless the knot is placed just right and the drop is just the right height, instead of a quick snap of the neck the condemned may slowly strangle or have his head detached as quickly as by a guillotine.
  • The electric chair. Not as fool-proof as often thought. Too little current and the criminal doesn’t die the first time. Too much, and the criminal catches on fire.
  • Gas chamber. The method most widely in use when the Supreme Court ruled capital punishment cruel and unusual. (It also recalled the gas chambers in Nazi death camps.) The condemned were instructed to “take a whiff” to speed up death, but self-preservation means they would likely try to hold their breath and prolong the suffering.

A 1992 study published in the journal Perception concluded that “All of the methods used for executing people, with the possible exception of intravenous injection, are likely to cause pain,” but that the evidence of such pain is concealed by the procedure or the condemned individual’s restraints.

“Therefore, the absence of signs of severe pain does not provide sufficient evidence for us to decide whether or not it occurs,” the study concluded.

map

Usage of lethal injection for the death penalty in the United States.

DARK ORANGE: State uses only this method. LIGHT ORANGE State uses this method primarily but has other methods. GREEN State once used this method, but does not today. DARK BLUE State once adopted this method, but dropped before its use. LIGHT BLUE State has never adopted this method. Federal Government: lethal injection as a primary method; retains secondary methods U.S. Military: only lethal injection.  Map courtesy wikipedia

Since then, a 2014 execution by lethal injection in Oklahoma was botched so badly that the condemned took 43 minutes to die, apparently in great pain, on the gurney. The question then is why do we still use lethal injections? It isn’t a better method. It fails—in the sense that it takes longer or puts the condemned through more pain—more often than any other method.

More than seven percent of all lethal injections since 1980 were thus “botched,” a rate higher than hanging, electrocution or gas. (Firing squads had the lowest number and percentage of botches with zero, but there were far fewer of them.)

The answer seems to be because it looks like a routine medical procedure, not the brutal taking of somebody’s life. The trouble with botches isn’t that the condemned doesn’t die—they do, eventually—but that they die in a way that some observers find disturbing.

(Victims’ families and some death penalty supporters actually would like to see more pain.)

Even supporters of capital punishment may find watching an execution traumatic. A study of journalists who observed an execution as part of their job experienced “dissociative symptoms,” primarily a feeling of detachment. Viewing a film of an execution caused a decrease in support for capital punishment.

On the other hand, there no doubt is no method of execution that opponents of the death penalty wouldn’t oppose. If it was as fast and painless as turning off a light, they would still object. The expressed concern over whether it is cruel and unusual seems beside the point.

While humanitarians would agree that “If it were done when ’tis done, then ’twere well it were done quickly,” and that it is desirable that the condemned not feel pain, why a paralytic? It doesn’t reduce the suffering of the condemned or hasten death, but rather prevents them from doing anything that will upset the observers.

In fact, if the anesthetic didn’t work due to incompetence or other reason, the paralytic keeps them from alerting the executioners to the fact. They could be dying slowly and painfully.

How likely is such incompetence? The answer: higher than it would otherwise would be since physicians usually don’t conduct the executions, because it is a violation of most medical societies’ ethics. It violates the Hippocratic Oath’s injunction to “never do harm to anyone.” (Some do anyway because they are unaware of the ethics violation or just choose not to comply with it.)

How hard is it to administer an anesthetic? Well, anesthesiology is a specialty that takes years of training, and not everyone reacts the same to the same dose of a drug. What is a numbing quantity for one person might be fatal to another and have no discernible effect on a third.

In the face of these problems, some states are looking at another alternative: nitrogen gas. Alabama has started offering death-row inmates a choice between lethal injection and nitrogen gas. Since nitrogen has never been used on inmates before, the American Civil Liberties Union of Alabama says this is simply “experimenting on human beings.”

Worldwide, the death penalty is facing abolition.

Pope Francis changed the Catholic Church’s position on capital punishment in August, declaring it “inadmissible” and the Church’s previous acceptance of it as “more legalistic than Christian.” All these attempts to make execution more humane are an attempt to hold on to the death penalty despite such opprobrium.

Americans are rebels, proud to go their own way. When everybody else we respect is going in the other direction, maybe it’s time to change course.

Stephen Bitsoli, a Michigan-based freelancer, writes about addiction, politics and related matters for several blogs. He welcomes readers’ comments.

4 thoughts on “Fentanyl and the Death Penalty

  1. Stephen:

    As you write on addiction, I will assume that you know what symptoms addicts may show with opioid and other drugs, with abuse and overdose.

    In addition, multiple needle pricks and/or cut downs are not evidence of botched executions, but are both well know process of avoiding botched executions and/or other iv procedures.

    It appears that we may be looking at 1% “botched” lethal injections, not 7%.

    Justice is the foundation for all sanctions, inclusive of the death penalty.

    I would encourage you to fact check the cost studies.

    I am unaware that the deterrent effect on any negative prospect or any criminal sanction has been negated.

  2. Stephen:

    Why would using a very effective and available drug, fentanyl, “seem wrong” for use in lethal injection, when a painless death is the desired outcome?

    The same applies for nitrogen gas, as well.

  3. “Do no harm” is not part of the Hippocratic Oath and refers only to patients.

    The Hippocratic Oath bans abortion and euthanasia and contains no prohibition on the death penalty.

  4. Stephen:

    Explain this: you write

    “In fact, if the anesthetic didn’t work due to incompetence or other reason . . .”.

    “In fact”? How do those facts work?

    The overdose of anesthetic “magically” decides not to work?

    The incompetence of the execution team somehow does not allow the anesthetic to be injected but, somehow, is competent enough to successfully inject the other drugs?

    Absurd.

    I think we are well over 100 executions, using a one drug protocol. How often have either of those imaginative scenarios taken place in those?

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