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Article Excerpt
INTRODUCTION
In the late 1970s, when Texas was considering whether to adopt Oklahoma's three-drug lethal injection formula for the execution of prisoners, Dr. Ralph Gray, the doctor in charge of medical care in Texas prisons, consulted with a Texas veterinarian named Dr. Gerry Etheredge. (1) Dr. Etheredge told Dr. Gray that veterinarians used an overdose of one drug, an anesthetic called sodium pentobarbital, to euthanize animals and that it was a "very safe, very effective, and very cheap" method of euthanasia. (2) Dr. Etheredge remembers that Dr. Gray had only one objection to using a similar method to execute human beings. "He said it was a great idea," Dr. Etheredge recalled, "except that people would think we are treating people the same way that we're treating animals. He was afraid of a hue and cry." (3) Texas rejected Dr. Etheredge's one-drug, anesthetic-only recommendation and, in 1982, became the first state to actually use lethal injection--via the three-drug formula--as a method of execution. (4)
This history is almost hard to believe in light of the fact that three decades later, death row inmates in Texas, as well as in nearly every other death penalty state, are challenging the three-drug formula on the grounds that the method is less reliable, and therefore less humane, than the method used to euthanize animals. (5) Rather than objecting to their clients being treated no better than animals, lawyers for the petitioners in Baze v. Rees, the lethal injection case pending before the Supreme Court, have essentially asked the Court to require the state of Kentucky to treat them at least as well as the state requires shelter workers to treat animals during the euthanasia process. (6) Veterinarians have testified on behalf of death row inmates in several states, (7) and groups of veterinary experts have filed amicus briefs on behalf of petitioners in the two most recent Supreme Court lethal injection cases, Baze (8) and Hill v. McDonough. (9)
The three-drug formula that states use to execute people is often misleadingly referred to as a "cocktail." (10) The three drugs are not mixed together like a cocktail; instead, they are administered serially, usually with a saline flush in between each drug, to clear the intravenous ("IV") line. (11) The drugs are, in the following order, thiopental, pancuronium bromide, and potassium chloride. (12) The first drug is intended to anesthetize the inmate so he does not experience the effects of the second and third drugs. (13) The second drug paralyzes him, and the third drug stops his heart, killing him. (14)
The use of pancuronium, the second drug, presents a problem that is fundamental to the controversy over the lethal injection procedure. Because pancuronium paralyzes the inmate during the execution process, the inmate may experience excruciating pain and suffering but be unable to cry out or even blink an eyelid to let anyone know if the anesthesia has failed. (15) Because pancuronium masks the ability of a lay observer to discern whether the anesthetic drug has been properly delivered, it is very difficult or impossible, in most cases, to know whether the lethal injection execution has been "botched." (16) Pancuronium virtually ensures that the execution looks "peaceful" (17) when it may have been anything but.
The pain and suffering that an inmate would experience if not properly anesthetized is extreme. Because pancuronium is a paralytic that restricts the ability of the respiratory muscles to contract, it causes asphyxiation. (18) The third drug, potassium chloride, causes excruciating pain that has been likened to the feeling of having one's veins set on fire. (19) Experts who have testified in lethal injection cases have unanimously agreed that it would be unconscionable to inject either drug into a person who was not anesthetized, (20) At issue in recent challenges to the administration of this procedure is whether, and to what extent, the public can be sure that prison officials are properly administering the first drug, the anesthetic, and monitoring its continued effect, such that the inmate does not experience the suffocation the second drug causes or the excruciating pain that the third drug inflicts. (21) A state's lethal injection procedures violate the Eighth Amendment if they subject the inmate to an intolerable risk of excruciating pain. (22)
Litigation on behalf of death row inmates has exposed problems at every step of the process, including the mixing of the drugs; the setting of the IV. lines; the administration of the drugs; and the monitoring of their effectiveness. At each step, discovery has revealed untrained and unreliable personnel working with inadequate equipment under poorly designed conditions. In California, for example, a federal judge found a "pervasive lack of professionalism" (23) in the entire execution process, most notably in the improper mixing and preparation of the anesthetic; unreliable screening of execution team members; a lack of training and supervision of execution team members; inadequate and poorly designed physical facilities; and inconsistent and unreliable recordkeeping. (24) In Missouri, litigation revealed that the doctor who had presided over the past fifty-four executions in that state and who was responsible for mixing the drugs in their precise amounts, was dyslexic, admitted transposing numbers, and had been adjusting the dosages of the anesthetic drug on a whim, without telling anyone. (25) Other examples abound. (26) In short, there is now ample reason to believe that the systems in place for the administration of the three-drug formula in many states are inadequate to ensure proper and consistent delivery of the anesthetic drug.
Much of the testimony on the part of veterinary experts in lethal injection cases has to do with their concerns about the use of pancuronium, the paralyzing drug. Advocates for death row inmates have routinely cited state animal euthanasia laws and regulations in support of two complimentary arguments: first, that the veterinary community bans the use of paralytics in animal euthanasia for good reason, and second, that the veterinary community has, for many years, been using a safer, readily-available procedure that states have refused to adopt for human lethal injections. (27) For the most part, however, the state animal euthanasia laws themselves have been cited only summarily, and without a discussion of what led to their passage.
This Article takes an in depth look at animal euthanasia. Part I examines the paralyzing drugs that veterinarians and animal welfare experts refuse to allow in animal euthanasia. Part II discusses the standards of professional conduct for veterinary and animal shelter professionals. Part III looks at the state laws and regulations governing animal euthanasia. Finally, Part IV analyzes the legislative history that led to the enactment of the various states' animal euthanasia laws and regulations. As this Article reveals, many more states than have previously been recognized either explicitly or implicitly ban the use of pancuronium or similar drugs in animal euthanasia. In fact, virtually all lethal injections in this country have taken place in states that either explicitly or implicitly ban the use of paralyzing drugs in animal euthanasia. Moreover, the concerns about those drugs, which informed and gave rise to the strict animal euthanasia laws and regulations, are identical in many ways to the concerns that lawyers for death row inmates are currently raising about the executions of human beings.
In the end, the fears of Ralph Gray, the Texas doctor, have proven unfounded. Dr. Gray was concerned that people would balk at treating humans, even if they are death row inmates, "the same way we're treating animals." (28) Not so. For thirty years now, states have been treating them worse, and killing them using methods that have long since been abandoned by the veterinary and animal welfare communities.
I. THE PROBLEM WITH CURARE
"The drug [curare] is never used as an anesthetic except when it is necessary to anesthetize the public conscience."
--British physician Edward Berdoe, 1903 (29)
States use pancuronium in the execution process because it paralyzes the inmate before death, thus sparing witnesses to the execution the experience of seeing the twitching and gasping that sometimes accompanies even painless deaths. (30) To fully comprehend the dangers of pancuronium, and the reasons why it is shunned in the practice of animal euthanasia, it is instructive first to consider briefly its origins and history.
Pancuronium belongs to a class of drugs called neuromuscular blocking agents. (31) Many of these drugs are derived from, or are synthetic versions of, curare, a highly poisonous extract from certain woody vines that grow in South America. (32) For that reason, they are often referred to as "curariform" drugs, because they have a curare-like effect. (33) Neuromuscular blocking agents interfere with the transmission of nerve impulses at the receptor sites of all skeletal muscle. (34) In lay terms, these drugs paralyze all voluntary muscles in the body, including the diaphragm, which is necessary to breathe. Unless a person under the influence of a neuromuscular blocking agent is assisted by an artificial breathing mechanism (such as a ventilator), he or she will suffocate to death. (35)
For centuries, indigenous tribes in South America used curare (which is also known as ourara, woorari, wourali, and urali) (36) to make poison-tipped hunting arrows. (37) They would combine bark scrapings from certain vines with viscous substances such as snake or ant venom, boil the mixture for days, and let it cool into a dark, heavy paste, into which they would dip their arrows. (38) Animals struck with these arrows would be paralyzed, and would eventually suffocate from respiratory paralysis. (39) Curare was particularly effective when hunting monkeys and other animals that lived high in the trees; once shot with a curare-tipped arrow, the animals would lose their grip and fall to the ground. (40) Indigenous hunters would assess the strength of their curare based upon how many trees a monkey could jump to after being poisoned. (41) A monkey shot with "one-tree curare" could only leap to one tree before falling; poisoned by a weaker, "three-tree curare," a monkey could leap to as many as three trees in an effort to escape before collapsing to the ground. (42)
Although used in hunting for centuries, curare came to the attention of physiologists in the mid-nineteenth century, particularly among those who practiced vivisection, the dissection of a living animal for medical experimentation. (43) The use of curare in vivisection was pioneered by the influential French physiologist Claude Bernard, who needed a way to keep the animals still and cooperative-but alive--while experimenting on them. (44) After discovering its paralyzing properties, Bernard routinely used the drug during vivisection to immobilize his subjects. (45)
It was through the use of curare in vivisection that people began to consider the implications of what curare did not do, namely serve any anesthetic function. While curare inhibits all voluntary movement, it does nothing at all to affect consciousness, cognition, or the ability to feel pain. (46) Although some researchers initially believed that curare had anesthetic properties (and some believed that animals had no awareness of pain generally), (47) such beliefs may simply have been the product of wishful thinking on the part of vivisectors who, as a matter of course, routinely cut open and dissected fully conscious animals. (48) In 1864, Bernard described an animal under the influence of curare as corpse-like, but quite alive:
In this motionless body, behind that glazing eye, and with all the appearance of death, sensitiveness and intelligence persist in their entirety. The corpse before us hears and distinguishes all that is done around it. It suffers when pinched or irritated, in a word, it has still consciousness and volition, but it has lost the instruments which serve to manifest them. (49)
Not surprisingly, the use of curare during animal experimentation was controversial; indeed, its use led to the passage of antivivisection laws in Great Britain at the end of the nineteenth century. (50) Testifying before the Royal Commission of 1875, an investigative body created to examine the morality of vivisection, one witness, Dr. Hoggan, described the experience of a dog subjected to vivisection while paralyzed by curare. (51) Curare, he testified, was used to
render [the] dog helpless and incapable of any movement, even of breathing, which function was performed by a machine blowing through its windpipe. All this time, however, its intelligence, its sensitiveness, and its will, remained intact.... In this condition the side of the face, the interior of the belly, and the hip, were dissected out ... continuously for ten consecutive hours ... (52)
In 1868, the Swedish physiologist A. F. Holmgren condemned curare as "the most cruel of all poisons." (53) Its use, he wrote,
changes [one] instantly into a living corpse, which hears and sees and knows everything, but is unable to move a single muscle, and under its influence no creature can give the faintest indication of its hopeless condition. The heart alone continues to beat. (54)
Even Bernard eventually became troubled by the suffering his experiments caused, and urged the Royal Commission to impose tougher restrictions on the use of vivisection. (55)
In the 1940s, surgeons began to utilize curare in surgery as a way of relaxing the muscles and aiding in certain delicate procedures. (56) Anesthesiologists hailed the advent of curariform drugs in surgery, because their paralytic properties obviated the need for massive, and potentially dangerous, doses of anesthesia to control unwanted movement. (57) Instead of using deep anesthesia to restrict muscle movement, curare-induced paralysis accomplished the same goal without the accompanying danger of general anesthesia. (58) The drug quickly became a staple in operating rooms, allowing surgeons to work with improved surgical field and without fear of involuntary muscle contraction. (59)
But while paralytic agents have their place in modern surgery, their inherent danger remains. Dr. Harold Griffith, a Canadian doctor who was the first to use curare on human beings to assist with surgery, published his findings in 1942. (60) While extolling the virtues of curare in the surgical setting, he also warned that it is a "dangerous poison, and should only be used by experienced anesthetists in well-equipped operating rooms." (61) Any time paralytic drugs are used in surgery, the necessity of adequately maintained anesthesia is that much more important, as the drugs restrict the patient's ability to verbally communicate sensation, or physically respond to assessments of anesthetic depth. (62) If the anesthesia wears off during surgery, and the patient is paralyzed, the consequences can be horrific. (63) This phenomenon, referred to as anesthesia awareness, is well-known in the annals of surgery and is a major concern of the anesthesiology profession. (64)
For example, in 2004, the Joint Commission, (65) the accrediting agency for hospitals and health care organizations in the United States, issued an "Alert" about the problem of anesthesia awareness. (66) According to the Joint Commission, there are 20,000 to 40,000 cases of anesthesia awareness each year in the United States, many of which result in mental distress and post-traumatic stress disorder. (67) The alert concludes that "[a]nesthesia awareness is under-recognized and under-treated in health care organizations" and notes that it is important to "[a]void muscle paralysis unless absolutely necessary" for fear that the patient will be "unable to communicate with the surgical team" if the anesthesia fails. (68) The problem of anesthesia awareness has also been one of the preeminent and longstanding concerns of the American Society of Anesthesiologists ("ASA"). (69) In 2006, the ASA commissioned a task force on the subject, and eventually issued a lengthy practice advisory intended to "reduce the frequency of unintended intraoperative awareness." (70) Among other things, the report warned that the "use...
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