To: Professors and Staff, Georgetown Law School and Georgetown Law Journal
RE: Rebuttal: Facing the Firing Squad, ANDREW JENSEN KERR, 104 Geo L.J. Online 74 (2016)
Note: This rebuttal applies to any of the related writings by Austin Sarat and Deborah Denno
From: Dudley Sharp
I hope this helps Kerr and the Law Journal to vet a little better.
It appears that lethal injection executions are "botched" about 1% of the time, not 7%.
The vast majority of the "botched" executions are no such thing.
The majority of the false "botched" claims are attributed to multiple needle pricks and/or problems with the murderer's veins.
Everyone familiar with lethal injections and other IV procedures knows that multiple needle pricks are a responsible and necessary function to avoid "botched" executions or botched medical IV use.
Multiple needle pricks are 1) not "botched" executions, but represent a common, normal safety practice with all IV procedures, daily and worldwide, 2) preparation for the execution, not the execution, and 3) often required to have secure needle insertion and retention.
It would be negligent not to go through that procedure, the opposite of "botched".
The entire process of looking for good veins is to prevent "botched" executions. Once good usable , secure veins were found, the executions proceeded.
It is the opposite of "botched".
Other, wrongly, identified "botched" executions are when the murderer is gasping for breath, coughing, etc., which are the expected, known outcomes of respiratory distress, common effects with these drugs, whose effects are well known to include . . . . respiratory distress, (1) with very few of those incidents having any evidence to show consciousness or pain.
Other false claims of "botched" executions are cases where the murderer is making noise, jerking, having spasms, etc., well known in cases of drug overdoses, which is, precisely, what we are dealing with (1) - drug overdoses are what lethal injections are - with zero evidence of consciousness or pain.
These are the well known side effects of the drugs used, not "botched" executions.
In addition, many of the sources for alleged "botched" are media, which, completely, blew the reality of the Arizona execution of Wood and the Ohio execution of McGuire cases, two infamous "botched" executions (2).
These were not botched executions, but just took a long time to die, as expected, with no evidence of any consciousness or pain (2).
What happens when an author doesn't fact check their sources and their sources are media that don't fact check? Will anyone rely on those sources or the conclusions drawn from them? Obviously, they shouldn't.
Unfortunately, many in the media and academia, as with this article, do so, all the time.
"(Wood's execution) doesn’t actually sound like a botched execution. This actually sounds like a typical scenario if you used that drug combination,” said Karen Sibert, an anesthesiologist and associate professor at Cedars-Sinai Medical Center. Sibert was speaking on behalf of the California Society of Anesthesiologists." (2).
Both of those executions are included in "botched" execution claims, only because folks depended upon inaccurate media reporting and repeated that non fact checking error . . . or they are being dishonest.
Kerr writes: " The desiccated market for this anesthetic has forced U.S. wardens to shop for off- brand pharmaceuticals in places like India or U.S. state regulated “compounding” pharmacies, where standards of quality control might be lacking."
"Might" is irrelevant. Facts are relevant. Quality control might not be lacking.
Denno, an anti death penalty professor, mentioned in the article, brings up, constantly, the 2012 meningitis outbreak at a compounding pharmacy, as if that is representative of compounding pharmacies. It isn't.
Has there been one case of improperly compounded drugs used in an execution? No.
Somehow, that was left out of Denno's comments and this article.
Has Kerr or Denno considered how many innocent people have died and or been injured, in the US, since 1973, because of errors by non-compounding pharmacies and because of the FDA and the drug companies approving drugs that were, later, found to be deadly or injurious? Of course not.
My educated guess is that it is way over 100,000 innocents dead, with countless injured (2). Why don't they check out "medical misadventures" (3), finding up to 400,000 innocent patients dying, every year in the US, due to such "misadventure" (3).
I am speaking of innocent patients, not guilty murderers.
Has it been shown that compounding pharmacies are a less reliable source for execution drugs than other sources? No.
Did Kerr review the medical literature on the overdosing properties of all the drugs being used for executions? It appears not. Very easy to do. Why wouldn't he? Ask him.
Does Kerr understand that those properties are the same, whether in an execution setting, or not?
The properties of the drugs don't, all of a sudden, magically, change, when they are used in lethal injection.
This, below, indicates that Kerr is unaware.
Kerr writes: " . . . in the post Baze world of midazolam and other off brand substitutes the trigger anesthetic might fail to sedate the executed."
"Might" is not a fact. Factually, all the cases Kerr is speaking of were sedated.
Kerr writes: " . . . the anti epileptic drug pentobarbital has even been repurposed to replace sodium thiopental. The deleterious consequences of these kinds of substitute compounds are exacerbated by the tranquilizing effect of pancurium (the second drug of the traditional three part cocktail)." "The feint here is that in the botched injection this muscle relaxant can mimic a look of serenity on the face of the executed, when they are in fact experiencing the visceral terror of their “whole body burning. It is the orca’s false smile of Blackfish." "the terrific pain of the botched lethal injection remains masked". "The executed person’s musculature is too incapacitated to reflect the existential pain of cardiac arrest. Instead, the mask of the executed is inflected as a performance of dignified passing for the execution audience."
Such fiction. Such drama. Kerr has no evidence to support his claims. The evidence is found in the overdoing properties of the drugs which, it appears, Kerr "forgot" to investigate.
Texas uses a one drug protocol, pentobarbital and has had no problems. No other drug is used.
What evidence does Kerr have that those states, which use pentobarbital, first, and pancuriun, second, have had any problems with that protocol? None.
Is Kerr aware that those two drugs, used together, may increase the potency or effects of both?
Kerr fails to tell us why and how the first drug, which causes unconsciousness just, all of a sudden, decides, on its own, to stop being effective, and thus, somehow allows the murderer to become conscious, even though such is not possible, with the drugs known characteristics, at the dosages given.
Kerr could not have botched this more.
Kerr, also, botched the physician's "do no harm" oath.
Kerr is unaware that "do no harm" is not part of the Hippocratic Oath (5) and is, only, specified with regard to patients (5), in another document. Death row inmates are not patients.
The Hippocratic Oath bans physician participation in both euthanasia and abortions (5), practices which countless physicians participate in, millions of times per year, without any complaints from the AMA or any concern for the Hippocratic Oath.
There is no death penalty ban in that oath.
The AMA seems to only follow the Hypocrisy Oath. What Kerr follows is a mystery.
Alternate Executions Options
All states need to seek an exception for lethal injection drugs, from both DEA and FDA control, so the states can used whatever they find to be the best alternative.
The single drug, lethal injection protocol with penatobarbitol seems to work very well.
Fentanyl maybe the best alternative.
"The researchers asked the respondents to describe what happened during a suspected fentanyl overdose. The most common characteristic, described in 20 percent of the cases, was that the person's lips immediately turned blue, followed by gurgling sounds with breathing (16 percent of the cases), stiffening of the body or seizure-like activity (13 percent), foaming at the mouth (6 percent) and confusion or strange behavior before the person became unresponsive (6 percent), according to the report." (6)
Sound familiar? Sounds and body movement.
The alternate method for execution in Oklahoma and Alabama is nitrogen gas, by far the most foolproof method, when looking at 1) the fewest things that can go wrong, 2) the total lack of pain for the executed murderer and 3) it cannot be withheld or restricted (3). All organs are useful in the very off chance the murderer wishes to donate viable organs or their body to science. I agree that the firing squad is a responsible option.
1) There are a lot of medical writings on these issues. Here are just two.
Opioid Drug Use and MyoclonusPosted in Physical Health
Opiates and Sleep-Disordered Breathingby Barry Krakow, Sleep Dynamic Therapy | Nov 12, 2015
2) No "Botched" Execution - Arizona (or Ohio)
3) see Do MORE Harm: The Anti Death Penalty Solution
within The Death Penalty & Medical Ethics Revisited
4) Nitrogen Gas; Flawless, peaceful, unrestricted method of execution
5) see THE ETHICS OF LYING - The Hippocratic Oath
within The Death Penalty & Medical Ethics Revisited
6) Here's What Happens During a Fentanyl Overdose, Sara G. Miller, LIVESCIENCE, April 13, 2017