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Virginia Increases Execution Secrecy After Difficulty Setting IV in Last Execution

After prison personnel took more than a half hour to set the IV line during Virginia's January 18 execution of Ricky Gray, the Commonwealth's Department of Corrections has changed its execution procedures to conduct more of the execution preparations out of view of witnesses. Prior to the change, witnesses watched as the prisoner entered the execution chamber and was strapped to the gurney. A curtain was closed while staff placed intravenous lines and electrodes for a cardiac monitor, then reopened when the execution was ready to be carried out. The curtain was closed for 33 minutes during Gray's execution, raising concerns that something had gone wrong in the placement of the IV. The ACLU of Virginia said, "the length of time Gray was behind the curtain, as well as the presence of a doctor who confirmed his death using a stethoscope rather than by viewing a heart monitor as the previous protocols required, suggest something unusual happened during the process of killing him." Under the new protocol, witnesses will no longer be able to view the prisoner entering the chamber, so they will not know when the process begins. In 2015, the American Bar Association adopted an Execution Transparency Resolution calling for execution protocols to be promulgated "in an open and transparent manner" and to "require that an execution process, including the process of setting IVs, be viewable by media and other witnesses from the moment the condemned prisoner enters the execution chamber until the prisoner is declared dead or the execution is called off." In response to the Commonwealth's change in policy, the ACLU of Virginia urged Governor Terry McAuliffe to halt all pending executions and initiate a public review of the execution protocol. "It seems that, when confronted with questions and criticism over issues with the written protocols and actual practice of executing people in Virginia, the DOC and the administration’s posture is to ignore these concerns and then tighten the veil of secrecy even further to avoid uncomfortable questions in the future," the ACLU stated in a letter to the governor. The Virginia ACLU's Director of Public Policy and Communications, Bill Farrar, told WVIR-TV, "We have secrets upon secrets upon secrets with Virginia's process of executing people in this state and it needs to stop."


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Inventor of Midazolam Opposes Its Use in Executions

As U.S. pharmaceutical companies have removed medicines from the market to prevent states from obtaining them for executions, states have turned to alternatives, like the sedative midazolam. Dr. Armin Walser, who was part of the team that invented the drug in the 1970s, is dismayed at that development. “I didn’t make it for the purpose” of executing prisoners, Dr. Walser told The New York Times. “I am not a friend of the death penalty or execution.” For most of midazolam's history, the medicine was used only for its intended purpose: as a sedative in procedures like colonoscopies and cardiac catheterizations. Since 2009, however, six states have used it to carry out a total of 20 executions. Midazolam's use in executions has been marked by controversy because, critics argue, it is a sedative, not an anesthetic, and does not adequately anesthetize the condemned prisoner before painful execution drugs are administered. Megan McCracken, a specialist in lethal injection litigation with the University of California-Berkeley law school said, “Time and time again when you see executions with midazolam, you see, at best, surprises and, at worst, very bad executions.” Midazolam was used in the botched executions of Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Ronald Smith in Alabama. In January 2017, a federal magistrate judge barred Ohio from using midazolam in executions, saying that its use presented a substantial and objectively intolerable risk of serious pain and suffering during executions. As a result of litigation challenging Arizona's lethal injection protocol in the wake of Wood's execution, that state agreed that it would never again use midazolam. The manufacturer of the drug has said it “did not supply midazolam for death penalty use and would not knowingly provide any of our medicines for this purpose," leaving states to turn to alternative suppliers if they want to continue using midazolam in executions. Walser said that, when he learned about midazolam's use in executions, "I didn't feel good about it."


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DPIC Analysis: What is the Most Executions Conducted in the U.S. in the Shortest Time Span?

On February 27, 2017, Arkansas Governor Asa Hutchinson signed orders for an unprecedented eight executions to be carried out over a period of eleven days in April. The scheduled dates for the four sets of double executions are: April 17, Bruce Ward and Don Davis; April 20, Stacey Johnson and Ledell Lee; April 24, Jack Jones and Marcel Williams; and April 27, Kenneth Williams and Jason McGehee. Arkansas Attorney General Leslie Rutledge had asked that the dates be set after the U.S. Supreme Court on February 21 declined to review a state court decision upholding Arkansas' lethal injection protocol.

After Governor Hutchinson issued the execution orders, we received a flurry of press inquiries asking whether any state had carried out so many executions in such a short time span. 

We looked into this and found that, since states resumed executions in the 1970s, no state has ever executed eight prisoners in eleven days. Only one state—Texas—has ever executed 8 prisoners in a calendar month. That has occurred only twice (in back to back months), when Texas conducted eight executions in both May and June of 1997.

Scheduling two or more executions on the same day is also unusual. It has happened just ten times in the past forty years, all between 1994 and 2000. The last time it occurred was when Texas executed Brian Roberson and Oliver Cruz on August 9, 2000.

Only four states have carried out multiple executions on the same day: Arkansas (4 times), Texas (3 times), Illinois (twice), and South Carolina (once). Arkansas is the only state to have conducted triple executions, which it has done twice—on August 3, 1994 and January 8, 1997. No state has carried out more than one double execution in the same week. The shortest time span between multiple executions in any state is 84 days: Arkansas executed Edward Pickens and Jonas Whitmore on May 11, 1994 and co-defendants James Holmes, Darryl Richley, and Hoyt Clines on August 3 of that year.

The hurried schedule in Arkansas appears to be an attempt to use the state's extant supply of eight doses of midazolam, which are to expire at the end of April 2017. At the time the execution schedule was announced, Arkansas did not have a supply of potassium chloride, the killing drug specified in its execution protocol, but has subsequently announced that it has obtain sufficient supplies of that drug to carry out the scheduled executions.

Here are the dates on which states have conducted multiple executions:

TRIPLE EXECUTIONS

  • Arkansas, August 3, 1994:  James Holmes, Darryl Richley, and Hoyt Clines*
  • Arkansas, January 8, 1997:  Paul Ruiz, Earl Van Denton, and Kirt Wainwright

DOUBLE EXECUTIONS

  • Texas, January 31, 1995:  Clifton Russell and Willie Williams
  • Texas, June 4, 1997:  Davis Losada and Dorsie Johnson-Bey
  • Texas, August 9, 2000:  Brian Roberson and Oliver Cruz
  • Arkansas, May 11, 1994:  Edward Pickens and Jonas Whitmore
  • Arkansas, September 8, 1999:  Allen Willett and Mark Gardner
  • Illinois, March 22, 1995:  Hernando Williams and James Free
  • Illinois, November 19, 1997:  Walter Stewart and Durlyn Eddmonds
  • South Carolina, December 4, 1998:  J.D. Gleaton and Larry Gilbert*

* Co-defendants

No state has successfully executed two prisoners on the same day using midazolam. Oklahoma attempted to do so on April 29, 2014, but called off the second execution after the botched execution of Clayton Lockett earlier that night. The eight prisoners scheduled for execution make up 23% of Arkansas' current death row.

Here are the two calendar months in which Texas executed 8 prisoners.

Datesort descending Name Age Sex Race Number, Race, and Sex of Victims State County Region Method Juvenile Federal Volunteer Foreign National  
05/06/97 Terry Washington 33 m Black 1 White Female(s) TX Walker S Lethal Injection No No No No edit
05/13/97 Anthony Westley 36 m Black 1 White Male(s) TX Harris S Lethal Injection No No No No edit
05/16/97 Clifton Belyeu 38 m White 1 White Female(s) TX McLennan S Lethal Injection No No No No edit
05/19/97 Richard Drinkard 39 m White 1 White Male(s)
2 White Female(s)
TX Harris S Lethal Injection No No No No edit
05/20/97 Clarence Lackey 42 m White 1 White Female(s) TX Tom Green S Lethal Injection No No No No edit
05/21/97 Bruce Callins 37 m Black 1 White Male(s) TX Tarrant S Lethal Injection No No No No edit
05/22/97 Larry White 47 m White 1 White Female(s) TX Harris S Lethal Injection No No No No edit
05/28/97 Robert Madden 34 m White 2 White Male(s) TX Leon S Lethal Injection No No No No edit
06/02/97 Patrick Rogers 33 m Black 1 White Male(s) TX Collin S Lethal Injection No No No No edit
06/03/97 Kenneth Harris 34 m Black 1 White Female(s) TX Harris S Lethal Injection No No No No edit
06/04/97 Dorsie Johnson 30 m Black 1 White Male(s) TX Scurry S Lethal Injection No No No No edit
06/04/97 Davis Losada 32 m Latino 1 Latino Female(s) TX Cameron S Lethal Injection No No No No edit
06/11/97 Earl Behringer 33 m White 1 White Male(s)
1 White Female(s)
TX Tarrant S Lethal Injection No No No No edit
06/16/97 David Stoker 38 m White 1 White Male(s) TX Hale S Lethal Injection No No No No edit
06/17/97 Eddie Johnson 44 m Black 1 White Male(s)
2 White Female(s)
TX Aransas S Lethal Injection No No No No edit
06/18/97 Irineo Montoya 30 m Latino 1 White Male(s) TX Cameron S Lethal Injection No No No Yes edit

To determine the most executions in any 11-day period in the modern era of the United States’ death penalty, we wrote a custom program to search our execution database. The answer? From December 4-12, 2002, 6 states conducted a combined total of 9 executions in 9 days.

The shortest time span in which 8 executions were carried out occurred during part of that same 9-day span. In the 7 days from Dec. 6-12, 2002, 6 states conducted a combined 8 executions. Then, from April 28-May 5, 1999, 5 states executed a total of 8 prisoners in 8 days. In another overlapping 9-day span, 6 states carried out a combined total of 8 executions from Dec. 9-17, 2002.

Here are the search results.

Number of Executions Date Range Date Number Since 1976 State Name
8 Apr. 28, 1999
to
May 7, 1999
Apr. 28, 1999 537 MO Ralph Davis
Apr. 28, 1999 538 TX Aaron Foust
Apr. 28, 1999 539 VA Eric Payne
Apr. 29, 1999 540 VA Ronald Yeatts
May 4, 1999 541 CA Manuel Babbitt
May 4, 1999 542 TX Jose De La Cruz
May 5, 1999 543 AZ Robert Vickers
May 5, 1999 544 TX Clydell Coleman
9 Dec. 4, 2002
to
Dec. 13, 2002
Dec. 4, 2002 811 TX Leonard Rojas
Dec. 6, 2002 812 NC Ernest Basden
Dec. 9, 2002 813 FL Linroy Bottoson
Dec. 10, 2002 814 NC Desmond Carter
Dec. 10, 2002 815 OK Jerry McCracken
Dec. 11, 2002 816 TX James Collier
Dec. 11, 2002 817 MS Jessie Williams
Dec. 12, 2002 818 AL Anthony Johnson
Dec. 12, 2002 819 OK Jay Neill
8 Dec. 6, 2002
to
Dec. 15, 2002
Dec. 6, 2002 812 NC Ernest Basden
Dec. 9, 2002 813 FL Linroy Bottoson
Dec. 10, 2002 814 NC Desmond Carter
Dec. 10, 2002 815 OK Jerry McCracken
Dec. 11, 2002 816 TX James Collier
Dec. 11, 2002 817 MS Jessie Williams
Dec. 12, 2002 818 AL Anthony Johnson
Dec. 12, 2002 819 OK Jay Neill
8 Dec. 9, 2002
to
Dec. 18, 2002
Dec. 9, 2002 813 FL Linroy Bottoson
Dec. 10, 2002 814 NC Desmond Carter
Dec. 10, 2002 815 OK Jerry McCracken
Dec. 11, 2002 816 TX James Collier
Dec. 11, 2002 817 MS Jessie Williams
Dec. 12, 2002 818 AL Anthony Johnson
Dec. 12, 2002 819 OK Jay Neill
Dec. 17, 2002 820 OK Ernest Carter

We also checked to see the most number of prisoners a single state had executed over any 11-day period in the modern era. The answer is 6. Texas executed 6 prisoners in 10 days twice, once in the 10 days from May 13-22, 1997 and a second time in the 10 days from January 18-27, 2000.

Number of Executions Date Range Date Number Since 1976 State Name
6 May 13, 1997
to
May 22, 1997
May 13, 1997 380 TX Anthony Westley
May 16, 1997 382 TX Clifton Belyeu
May 19, 1997 383 TX Richard Drinkard
May 20, 1997 384 TX Clarence Lackey
May 21, 1997 385 TX Bruce Callins
May 22, 1997 386 TX Larry White
6 Jan. 18, 2000
to
Jan. 27, 2000
Jan. 18, 2000 605 TX Spencer Goodman
Jan. 20, 2000 606 TX David Hicks
Jan. 21, 2000 607 TX Larry Robison
Jan. 24, 2000 608 TX Billy Hughes
Jan. 25, 2000 609 TX Glenn McGinnis
Jan. 27, 2000 610 TX James Moreland

—Robert Dunham, Executive Director
   (Updated March 23, 2017)

The DPIC execution database is available to the public at http://www.deathpenaltyinfo.org/views-executions.

 


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Arkansas Schedules Unprecedented Eight Executions in Ten-Day Period

Arkansas Governor Asa Hutchinson signed orders on February 27 for an unprecedented eight executions to be carried out over a period of ten days in April. The scheduled dates for the four sets of double executions are: April 17, Bruce Ward and Don Davis; April 20, Stacey Johnson and Ledell Lee; April 24, Jack Jones and Marcel Williams; and April 27, Kenneth Williams and Jason McGehee. Arkansas Attorney General Leslie Rutledge asked that the dates be set after the U.S. Supreme Court on February 21 declined to review a state court decision upholding Arkansas' lethal injection protocol. Because of drug shortages and challenges to its lethal injection procedures, the state has not carried out an execution since 2005. If all eight executions are performed, it will be the first time since 1997 that a state has executed eight people in one month, when Texas conducted eight executions in both May and June of that year. No other state has conducted as many as eight executions in a single month since executions resumed in the U.S. in 1977, and no state has carried out eight executions in ten days. Scheduling two or more executions on the same day is also unusual; states have executed two or three inmates on the same day just ten times in the last forty years, and no state has carried out more than one double execution in the same week. The hurried schedule appears to be an attempt to use the state's current supply of eight doses of midazolam, which will expire at the end of April. Arkansas does not currently have a supply of potassium chloride, the killing drug specified in its execution protocol, but believes it can obtain supplies of that drug prior to the scheduled execution dates. Attorneys for the eight death-row prisoners filed an amended challenge to Arkansas' lethal injection procedures in state court on February 25 and wrote a letter to the governor urging him to reconsider the lethal injection protocol. "We believe it would be a mistake for you to uncritically accept the Supreme Court's opinion as a license to use the current protocol," the attorneys said. "Not only would our clients suffer, but so would our state's image and moral standing in the eyes of the country and the world." No state has successfully executed two prisoners on the same day using midazolam. Oklahoma attempted to do so on April 29, 2014, but called off the second execution after the botched execution of Clayton Lockett earlier that night. The eight prisoners scheduled for execution make up 23% of Arkansas' current death row.


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American Bar Association Human Rights Magazine on Capital Punishment

Human Rights Magazine, a quarterly publication by the American Bar Association, focused its first-quarter 2017 edition on capital punishment, marking the 40th anniversary of Gregg v. Georgia. Articles by nationally-renowned death penalty experts examine geographic disparities in death sentences, secrecy and lethal injection, intellectual disability, mental illness, and other critical questions in the current discourse around the death penalty. In the introduction to the magazine, Seth Miller, executive director of the Innocence Project of Florida and chair of the ABA Death Penalty Due Process Review Project, and Misty Thomas, staff director of the ABA Death Penalty Due Process Review Project, write, "Forty years after Gregg, attorneys, scholars, and advocates continue to debate whether our collective con­cerns regarding the arbitrary and discriminatory application of the death penalty have indeed been ade­quately addressed. The anniversary of this crucial decision—which marks, in effect, the “birth” of the modern death penalty—provides an essential opportunity for reflection and con­sideration of this critical question." 


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American Nurses Association Adopts Position Statement Against Capital Punishment

In an expansion of their stance opposing nurse participation in executions, the American Nurses Association (ANA) announced on February 21, 2017 that the organization now for the first time opposes capital punishment itself. "Capital punishment is a human rights violation, and ANA is proud to stand in strong opposition to the death penalty," ANA President Pamela F. Cipriano said. "All human beings, regardless of their crimes, should be treated with dignity. For those states where capital punishment is currently legal, the American Nurses Association will continue to provide ethical guidance, education, and resources for nurses and other health care providers dealing with these ethical dilemmas." The ANA had long opposed nurses participating in the death penalty in any role, adopting that position in 1983. “The drafters of the subcommittee were initially supporters of the death penalty until they started doing research," Liz Stokes, the senior policy advisor for the ANA Center for Ethics and Human Rights, said. But as they studied the issue, she said, they were moved by the body of evidence showing problems in the way it was administered. Ultimately, the ANA’s board of directors unanimously adopted the new position. The ANA statement offers nine reasons for the association's opposition to the death penalty, including racially and geographically biased application, the risk of executing innocent people, botched executions, and high costs. The new position aligns with the International Council of Nurses, which "considers the death penalty to be cruel, inhuman and unacceptable," and reflects a growing consensus among medical organizations that participation in executions by medical professionals is unethical. The American Medical Association, American Board of Anesthesiology, and American Pharmacists Association, among others, have discouraged or forbidden their members from participating in executions and American pharmaceutical manufacturers have adopted policies seeking to prevent misuse of their medicines as execution drugs.


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Former Federal Appeals Judge Urges Caution as Ohio Reschedules Executions

In a guest column for the Cleveland Plain Dealer, retired federal appeals court judge Nathaniel R. Jones (pictured) urged Ohio to "reconsider its race to death" in scheduling executions while the constitutionality of the state's lethal injection process remains in question. Jones, who served on the United States Court of Appeals for the Sixth Circuit from 1979 to 2002, criticized the state's proposed use of the drug midazolam in executions, describing Ohio's 2014 execution of Dennis McGuire using the drug, in which witnesses said McGuire "gasped loudly for air and made snorting and choking sounds for as long as 26 minutes" before dying. In its aftermath, Ohio temporarily halted executions and announced that it would not use midazolam—which has now been implicated in botched executions in four states—in the future. Jones wrote that, since the McGuire execution, "even more information has emerged about how unsuitable midazolam is for lethal injection." But despite its prior announcement and the additional evidence concerning midazolam, Ohio in 2016 proposed a new three-drug protocol that included midazolam as the first drug, and the state is defending that protocol in court. After a five-day hearing in which the court heard extensive expert testimony, U.S. Magistrate Judge Michael Merz held that Ohio had failed to prove that midazolam does not present a substantial risk of harm and declared the state's proposed execution protocol unconstitutional. Despite the on-going litigation, Ohio set new execution dates both before and after the hearing. "Ohio officials must not risk another unconstitutional execution," Jones wrote. "That can be done only by placing executions on hold while courts take the time necessary to consider whether Ohio's problematic protocol passes constitutional muster." He called on Ohio officials "to agree not to resume executions until the courts determine a lawful method." On February 10, Ohio Governor John Kasich announced that he was rescheduling eight executions as the state appealed the magistrate judge's ruling. The earliest execution, which had previously been scheduled for February 15, was moved to May 10. 


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Texas Sought Execution Drugs from Company Raided by India for Illegal Drug Sales

A BuzzFeed News investigation reports that Texas sought to import execution drugs from a supplier in India that the Indian Narcotics Control Bureau shut down for allegedly selling psychotropic drugs and opioids illegally to customers in the United States and Europe. A Drug Enforcement Agency report from January 2015, obtained by BuzzFeed, indicates that Texas was in contact with an Indian drug supplier, Provizer Pharma, to obtain lethal injection drugs, just weeks before Indian narcotics control agents raided Provizer Pharma for the illegal sale of generic Xanax, generic Ritalin, opiods, and other drugs. Hari Om Gandhi, a regional director with the Indian Narcotics Control Bureau, said the drugs—which Indian court documents allege were being illegally sold online—are used medically "for relieving stress ... [, but] are also used as party drugs, as it stimulates senses.” Five Provizer Pharma partners were arrested and detained for nine months for violating India’s Narcotic Drugs and Psychotropic Substances Act and the company's facility was shut down after what the Narcotics Control Bureau described as "a significant sezure" of illegal drugs. The DEA investigative report states that Texas "will be importing" 500 to 1,000 grams of sodium thiopental, which it "will be importing from the following supplier: Provizer Pharma." The Texas Department of Criminal Justice has issued a statement saying that the state has never “engaged in any transaction” with Provizer Pharma. Sodium thiopental was widely used in executions before its U.S. manufacturer halted production because it objected to the use of its medicine in executions. Shortly after the deal with Provizer Pharma fell through, Texas purchased sodium thiopental from another Indian company, Harris Pharma, but the shipment was halted by the Food and Drug Administration. Texas recently filed suit against the FDA to have the drug shipment released, but the FDA is under a federal court order to block importation of sodium thiopental. 


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Federal Magistrate Judge Rules Ohio Lethal Injection Protocol Unconstitutional

After receiving evidence during a five-day hearing, U.S. Magistrate Judge Michael R. Merz ruled on January 26 that Ohio's lethal injection process will create a substantial and objectively intolerable risk of serious harm in violation of the Eighth Amendment. Based on that ruling, the court issued a preliminary injunction staying the executions of Ronald Phillips, Raymond Tibbetts, and Gary Otte. Ohio has not conducted an execution since January 2014, when it used a combination of the drugs midazolam and hydromorphone in the 26-minute long botched execution of Dennis McGuire. In January 2015, Ohio changed its protocol and removed the controversial drug midazolam, only to announce in October 2016 that it had changed course and would use midazolam in upcoming executions as part of a three-drug protocol. Ohio's proposed protocol consisted of: midazolam, a sedative the state claimed would anesthetize the prisoner; then a drug that causes complete muscle paralysis and consequently suffocation; followed by potassium chloride to ultimately stop the heart. The second and third drugs will cause excruitating pain and suffering if given to a person who is not properly anesthetized. Numerous medical experts have asserted that midazolam does not anesthetize a person sufficiently to prevent experiencing intense pain from the other drugs, but a number of states have nevertheless continued to use the drug in executions. In addition to Ohio, Arizona, Oklahoma, and Alabama all have conducted visibly problematic executions with midazolam. Florida, which has carried out more executions with midazolam than any other state, recently changed its protocol to abandon use of the drug. Judge Merz credited the testimony of scientific experts, finding that "midazolam does not have the same pharmacologic effect on persons being executed as the barbiturates thiopental sodium and pentobarbital." The magistrate judge rejected Ohio's argument that midazolam would cause the prisoner to forget any pain he might experience during the execution, writing, "That does not mean the pain was not inflicted and the Supreme Court has yet to tell us that inflicted pain that is not remembered does not count as severe pain for Eighth Amendment purposes." Under the doctrine of "judicial estoppel," the court also blocked the state from using the proposed second and third drugs because it had relied on abandoning their use as grounds for winning a prior lawsuit in 2009. The court said applying the estoppel rule was necessary to "prevent[] a party from abusing the judicial process through cynical gamesmanship." 


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Anesthesiologist Says Lethal Injection Creates Moral Dilemma for Physicians

Lethal injection as practiced in U.S. executions "is an impersonation of medicine populated by real doctors who don't acknowledge the deception," Dr. Joel Zivot (pictured), an anesthesiologist and associate professor of anesthesiology at Emory University School of Medicine, writes in an op-ed for CNN. Setting aside the question of the rightness or wrongness of capital punishment itself, he says, "it's time to reject lethal injection" as the method of execution. Dr. Zivot's op-ed describes how the medicalization of executions has created an ethical problem for doctors. He cites as an example the recent Virginia execution of Ricky Gray, which used midazolam and potassium chloride from a compounding pharmacy, along with a paralytic drug. He calls lethal injection, "a trick of chemistry" that "does not cause a cruelty-free death," explaining, "Virginia used a paralytic drug that may obscure the failure of midazolam to create the sort of deep unconsciousness contemplated by lethal injection proponents." He says that, because lethal injection "approximates a medical act," it "fall[s] within the purview of physicians who now find themselves wittingly or unwittingly cast in the role of execution adviser." These physicians must choose between their profession's ethical prohibition against killing—both the American Medical Association and the American Board of Anesthesiology have issued statements condemning physician involvement in executions—and their ethical imperative to reduce suffering, especially in the face of botched executions. "An inmate facing death is not a patient by virtue of being connected to an intravenous device and having a doctor in a lab coat standing by. Physicians can only work with patient consent," Zivot says. He asks, "What is the role of the doctor in the execution chamber? When does the alleviating of suffering become physician-assisted homicide?" Because of these ethical dilemmas, and the failure of lethal injection to offer a cruelty-free execution, Zivot concludes, "If capital punishment continues, it needs another method."


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