Lethal Injection: States Medicalize Execution

Joel B. Zivot, MD *

In Baze v. Rees, the Supreme Court of the United States upheld the constitutionality of a method of lethal injection used for capital punishment.[1] The three-drug protocol referenced in Baze consisted of three chemicals injected into the condemned inmate via an intravenous drip.[2] The three-drug protocol began with sodium thiopental, followed by pancuronium bromide, and lastly, potassium chloride.[3] The claim that this lethal injection method would violate the Eighth Amendment’s ban on cruel and unusual punishment was made on behalf of two individuals, Ralph Baze and Thomas Bowling, both sentenced to death in Kentucky.[4]

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*    Assistant Professor of Anesthesiology & Surgery, Medical Director of the Cardio-Thoracic Intensive Care Unit, Emory School of Medicine & Emory University Hospital. ABA, Anesthesiology/Critical Care Medicine, 1995, Cleveland Clinic Foundation; FRCP(C), Anesthesiology, 1993, University of Toronto; MD, 1988, University of Manitoba.

Thank you to the University of Richmond School of Law for giving me a forum to share my views on the problems of lethal injection. I want to especially thank Professor Corinna Barrett Lain, Tara Ann Badawy, Leah Stiegler, and the University of Richmond Law Review Allen Chair Symposium. Doctors have a unique perspective that has been mostly absent in law reviews and I hope my effort here will shed additional light on this important subject.

[1].    553 U.S. 35, 47 (2008).

[2].    Id. at 44.

[3].    Id.

[4].    Id. at 46–47.


The Executioners’ Dilemmas

Eric Berger *

When people learn that I study lethal injection, they are usually curious to know more (or at least they are polite enough to ask questions). Interestingly, the question that arises most often—from lawyers, law students, and laypeople—is why states behave as they do. In the wake of botched executions and ample evidence of lethal injection’s dangers, why do states fail to address their execution procedures’ systemic risks? Similarly, why do states so vigorously resist requests to disclose their execution procedures’ details?

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* Associate Professor of Law, University of Nebraska College of Law. I thank Ginger Anders, Anne Duncan, Jim Gibson, Megan McCracken, and the participants in the University of Richmond Law Review’s Allen Chair Symposium on Lethal Injection, Politics, and the Future of the Death Penalty for extremely helpful suggestions on earlier drafts. I also thank Nate Clark and Krystia Reed for splendid research assistance and Leah Stiegler, Sheherezade Malik, and the other wonderful editors of the University of Richmond Law Review for organizing this symposium. A McCollum Grant helped support the writing of this symposium contribution.


Witnessing Executions

Frank Green *

In the office early one morning in 1999 and groggy from working late the night before, I was checking my voicemail when I was jarred by a familiar voice.

The message was from Andre L. Graham, a man I had watched die a few hours earlier.[1] I had reached him on the telephone in recent days at the death house in the Greensville Correctional Center. He had not returned from the dead; the message was a day old. Still, suddenly, I was wide awake.

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* Frank Green has been a reporter with the Richmond Times-Dispatch since 1980 and began covering the death penalty in 1982 with the reporting of the execution of Frank Coppola, Virginia’s first post-Furman execution. The Times-Dispatch has given prominent coverage to every execution in Virginia since.

This symposium essay recaptures the author’s descriptions of past executions in Virginia. To maintain accuracy, the author used past articles he wrote right after executions in addition to his memory.

[1].    See Frank Green, Graham Dies by Injection—He Killed Woman, 20, in Richmond Robbery, Rich. Times-Dispatch, Dec. 10, 1999, at B1; see also Graham v. Commonwealth, 464 S.E.2d 128, 131 (Va. 1995), cert. denied, Graham v. Angelone, 528 U.S. 1058 (1999) (denying the application for stay of execution).


A Shot in the Dark: Why Virginia Should Adopt the Firing Squad as its Primary Method of Execution

P. Thomas DiStanislao, III*

On July 23, 2014, Arizona carried out Joseph Rudolph Wood III‘s death sentence by lethal injection in what was one of the most protracted executions in the history of the United States. Executioners began injecting lethal drugs—midazolam (a sedative) and hydromorphone—into his blood stream at 1:57 PM and finally pronounced him dead at 3:49 PM, nearly two hours later. Wood‘s attorneys had enough time to file emergency appeals with the Arizona Supreme Court and the United States District Court for the District of Arizona soliciting an injunction to stop the execution. They argued he was still alive and requested an order to resuscitate him as he lay in the death chamber. Wood died during the hearings on those filings. According to witnesses, he gasped more than 600 times before he succumbed and was compared to a fish on shore gulping for air while on the gurney.

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* J.D. Candidate 2016, University of Richmond School of Law. B.A., 2011, Wake Forest University. I would like to thank Pietro Sanitate for his suggestions and the University of Richmond Law Review staff and editors, especially Glenice Coombs and Leah Stiegler, for their assistance. I would also like to thank Judith and Stephen Smith for their valuable insight, Robert Harrison for his help, and my parents, Gini and Phil DiStanislao, for their support, encouragement, and for always answering my early-morning phone calls. Most importantly, I would like to thank my wife, Elizabeth, without whom none of this would be possible, for having faith in me and for reminding me to pray for a world where articles like this are no longer needed.

A Pink Cadillac, An IQ of 63, and a Fourteen-Year-Old From South Carolina: Why I Can no Longer Support the Death Penalty

Mark L. Earley, Sr. *

If you believe that the government always “gets it right,” never makes serious mistakes, and is never tainted with corruption, then you can be comfortable supporting the death penalty. I no longer have such faith in the government and, therefore, cannot and do not support the death penalty.

I supported the death penalty for all of my public life spanning from 1987 to 2001—as a Virginia State Senator, Attorney General, and Republican candidate for governor. Today, I can still make a conceptual argument as to why it should be a tool in the arsenal of a prosecutor—but it is just an argument. And, to me, the argument is tired, strained, and no longer defensible.

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  Criminal Defense and Trial Attorney, Earley Legal Group, LLC, Leesburg, Virginia. J.D., 1982, College of William and Mary, Marshall Wythe School of Law; B.A., 1976, College of William and Mary. Former Senator of Virginia (1988–1998); Attorney General of Virginia (1998–2001); Republican Candidate for Governor of Virginia, 2001; President and CEO, Prison Fellowship USA, 2001–2011.


The Politics of Botched Executions

Corinna Barrett Lain *

For decades now, America’s death penalty has been beset by serious problems in its administration, but what has finally gotten the public’s attention is a spate of botched executions in the first half of 2014. “2014 is Already the Worst Year in the History of Lethal Injection” one headline blared after a fourth execution went awry in July.[1] With fallout from botched executions named one of the “Top 10 Stories of 2014,” there can be little doubt: the death penalty is once again in the spotlight, and botched executions are what put it there.[2]

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*   Professor of Law and Associate Dean of Faculty Development, University of Richmond School of Law. Thanks to Jim Gibson for comments on an early draft, Cate Gray and Zack MacDonald for excellent research assistance, and to the University of Richmond Law Review for a fabulous symposium issue.

        [1].    Ben Crair, 2014 Is Already the Worst Year in the History of Lethal Injection, New Rep. (July 24, 2014), http://www.newrepublic.com/article/118833/2014-botched-execu tions-worst-year-lethal-injection-history.

        [2].    Michelle Charles, Top 10 Stories of 2014—No. 4: Fallout from Botched Execution Brings Death Penalty Challenges, Stillwater News Press (Dec. 27, 2014, 6:00 AM), http: //www.stwnewspress.com/news/top-stories-of—no-fallout-from-botched-execution/article _b4606b8e-8d7d-11e4-ade6-b71e24a226fc.html.