Originally sent May 6, 2025, slight edits
NOTE: As of May 10:
Based upon the comments, by Lain, on her book tour, the following will rebut or explain important differences to much of that within her book, if her book tour is an accurate reflection of her book.
The anti-death penalty frauds, regarding "botched" executions, state that 7% of lethal injections are botched, wherein they confess 93% are not botched, meaning the states and their executioners, overwhelmingly, get it right. Lain, never, admits that.
In reality, the evidence is that around 1% are botched, with 99% not.
I have encouraged Lain to confess error, now.
There is a reason I call the anti-death penalty movement FEMS (Fraud, Error and/or Misdirections) For a full review of that movement, see, In Closing, below.
To: Professor Corinna Barrett Lain, U of Richmond Law School
NYU Press and Michigan Law Review
All Professors, Students & Law Librarians, U of Richmond Law School & U of Nebraska Law School
and
So far - All at Legal Talk Network, Library Journal, History News Network, GOODREADS, JSTOR, Washington Independent Review of Books, Legal Theory Blog, The Arts Fuse, Texas Public Radio, Houston Public Media (88,7 NPR), Book Culture, Oak Ridger, League of Women Voters, Hunter Parnell (podcast Public Defenseless), CRIMEREADS, KOSU (NPR), WYPR (NPR), Faithful Politics Podcast, Baltimore Republic Media, Page One Media, NetGallery, ABA Journal, Mississippi Public Broadcasting (NPR), Many at American Bar Association (ABA), Brooklyn Public Library, New Orleans Public Radio (NPR), Dorf on Law, Project MUSE, Style Weekly, City Lights,
more to come
Subject: Rebuttal: Secrets of the Killing State: The Untold Secret of Lethal Injection
RE: Book Review: Lain on Secrets of the Killing State, By Eric Berger, Dorf on Law, April 30, 2025
Professor Corinna Barrett Lain's book
Secrets of the Killing State: The Untold Secret of Lethal Injection
From: Dudley Sharp, independent researcher, death penalty expert, former opponent, 832-439-2113, CV at bottom
Preface
This is, only, a review of the book review. I haven't read the book, yet, but, based upon Berger's review, the book is a normal anti-death penalty disaster.
Anti-death penalty activists are well known for creative and fraudulent definitions. Their best known example is the "innocent"/"exonerated" and released from death row, for which they, now, claim, 200 since 1973. Total nonsense. They, simply, redefined both "innocent" and "exonerated" as if redefining lie as truth and stuffed a bunch of cases into those perverse definitions, which has devolved into a 71-83% fraud rate in such claims (1), very much like their "botched executions" definition, within which death penalty opponents have included well known responsible procedures and the well known, normal side effects of the drugs, neither of which represent "botched" executions.
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Berger would have selected the most consequential issues within his review. I rebut.
Will any of the book reviewers/journalists/professors allow their readers/students to see this rebuttal. Very unlikely, as consistent with today's ethics.
1) Berger/Lain: "Lain begins with the misunderstanding that lethal injection is painless, a slight pinch followed by forever-sleep. She systematically discredits that view and explains how lethal injection often inflicts agony. The reasons are complex, but they boil down to the fact that most death-penalty states don't know what they're doing."
Rebuttal: All states use the knowledge of other death penalty states, pharmacologists and anesthesiologists to put together protocols that cause nearly painless deaths, the history of lethal injection. How Berger and Lain are unaware is a mystery.
All of the drugs and their normal, overdosing and/or lethal overdosing effects have been well known, often for decades. Basic and very easy to confirm.
With successful lethal injection executions, meaning death, in how many did Lain confirm agony?
Based, only, upon Berger's review, none.
The autopsies finding pulmonary edema cannot and do not confirm the executed murderers felt any pain, prior to unconsciousness and death, with more detail here:
" . . . a 500-mg dose of midazolam (100 times the norm) is adequate to render an inmate unconscious, said Dr. Ervin Yen, a retired anesthesiologist who has testified as an expert witness for the state of Oklahoma and has witnessed several executions. While some autopsies of inmates killed by lethal injection have indicated pulmonary edema, the condition would have begun after they lost consciousness and “is not causing them discomfort,” he said. What happens during a typical three-drug lethal injection
and here:
See Rebuttal: Botched Executions
and
No "Botched" Execution - Arizona (or Ohio)
2) Berger/Lain: "Potassium chloride, however, is excruciating in the under-anesthetized, so the humaneness of the protocol depends on the successful delivery of the anesthetic. For a variety of reasons, though, it is doubtful that the prisoner will be sufficiently anesthetized. And, just to make things even worse, the paralytic conceals whatever suffering the prisoner may be enduring, so observers might mistake a torturous execution for a peaceful one. As a result, states are unlikely to improve their protocols before future executions."
Rebuttal: All of that is false or is in the could be, maybe and/or no proof category, as Berger (and Lain?) tells us.
a) How many cases of the "under-anesthetized" are confirmed, allowing for the murderer to feel pain, prior to death?
Near zero. Why? Three reasons.
1) For the first drug, the anesthetics, or substitutes, are given in overdose or lethal overdose amounts, not "under-anesthetized", 5 mg is the norm, for midazolam, for surgery patients. Oklahoma's lethal injection is 500 mg, 100 times the norm, which, for Lain, is "under-anesthetized"? Of course.
2) The first drug, the anesthetic, or substitute, not only causes unconsciousness, but respiratory distress, very slow and shallow breathing, if not death, and
3) An execution team member confirms unconsciousness, prior to administering the second drug. The second drug, the paralytic, pancuronium bromide, paralyzes muscles and the lungs, meaning no breathing, at all, meaning, the combination of the anesthetic, or substitute, and the paralytic, the murderer cannot, possibly, be conscious, to feel any pain from the potassium chloride.
No breathing creates hypoxia, with extended hypoxia creating unconsciousness, within 10 seconds to a minute, with death, thereafter. "If oxygen deprivation continues for several minutes (typically around 4-6 minutes), vital organs such as the brain and heart begin to fail due to lack of energy." ( https://wellwisp.com/what-happens-when-you-suffocate/ ), yet it will be quicker, in the execution protocol, because the prior drugs, the anesthetic, or substitute, causes respiratory distress, very slow and shallow breathing, prior to the paralytic, so the murderer will, already, be oxygen deprived, prior to no breathing, and
"An initial dose of 0.08 to 0.1 mg/kg is enough to paralyze a human body for roughly 25 to 30 minutes, according to the NIH (National Institute of Health). At that rate, a 5.4- to 6.8-mg dose would be enough to leave a 150-pound person unable to move."
+ "Over the course of the execution, an inmate is given 100 mg of a paralyzing drug like vecuronium bromide . . .". nearly 20 times that amount.
"This dose of vecuronium bromide alone would cause death."
those three quotes from What happens during a typical three-drug lethal injection
b) "The signs and symptoms of potassium intoxication (lethal and non-lethal, which) include paresthesias of the extremities, areflexia, muscular or respiratory paralysis, mental confusion, weakness, hypotension, cardiac arrhythmias, heart block, electrocardiographic abnormalities and cardiac arrest (aka death)."
"A clinical IV dose of potassium chloride ranges from 10 mEq per hour to 40 mEq per liter of water."
The murderer " . . . will get a dose of 240 milliequivalents (mEq) of potassium chloride, . . ."
those two quotes from What happens during a typical three-drug lethal injection
It is, as if, anti-death penalty experts, like Berger and Lain, are unaware that the effects of all of the first drugs, don't, magically, nullify themselves, when going from patient use, with peaceful outcomes, millions of times a year, to executions. And the peaceful deaths, with those same first drugs, within medical error, causing death, or suicide deaths, perform in the exact same fashion as within execution, painless, unconsciousness and death.
Research medical misadventure deaths with those drugs and suicides. Easy.
Berger, Lain are you not aware, of any of this?
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As of May 10th, this rebuts all Lain statements, regarding medical ethics,
within her book tour.
The Death Penalty & Medical Ethics Revisited
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3) Berger/Lain: "Why are there reasons to doubt that the first drug will fully anesthetize the inmate? One reason, as Lain discusses, is that states sometimes select the wrong drug. For example, some states use midazolam as the first drug, even though midazolam is not an anesthetic. Doctors do give midazolam to help reduce anxiety prior to anesthesia, but midazolam itself has not been approved as a sole anesthetic against the kind of excruciating pain potassium chloride inflicts."
Rebuttal: “(Joseph Woods' execution - Az) doesn’t actually sound like a botched execution. This actually sounds like a typical scenario if you used that drug combination (the sedative midazolam and painkiller hydromorphone),” said Karen Sibert, an anesthesiologist and associate professor at Cedars-Sinai Medical Center. Sibert was speaking on behalf of the California Society of Anesthesiologists." ( No "Botched" Execution - Arizona (or Ohio)
Lain (Berger?) admit, when choosing the "right" drugs, there may be no pain, a step in the rational, history based direction. It's just the "wrong" drug, which might be the problem. "Maybe" "might be". Speculation. No proof.
Midazolam is not an anesthetic, but a benzodiazepines. It is not as effective, but at overdose and lethal overdose levels, midazolam causes unconsciousness, sleep, coma, cardiac arrest and death, identical symptoms to an anesthesia lethal overdose. Death will, likely, take longer. Very easy to research. Lain?
And with the paralytic drug (no breathing) next, there is no chance of pain with the third drug.
Midazolam isn't the "wrong" drug, there are, just, better ones, which anti-death penalty folks caused to stop the use of the "right" drug. causing murderers and innocent patients to suffer, more, based upon Berger's review.
More suffering seems to be the anti-death penalty movements intent, as per:
"After Hospira announced its decision, the American Society of Anesthesiologists issued a strongly worded statement saying it was "extremely troubled" by Hospira's forced exit from the market and criticizing the anti-death-penalty movement for "using" thiopental supplies to make a point. The doctors noted the "unfortunate irony that many more lives will be lost or put in jeopardy as a result of not having the drug available for its legitimate medical use." (2)
As Washington Post columnist Charles Lane observes: " . . . just when I'm giving them the benefit of the doubt, some Europeans (EU governments/politicians) go and do something irresponsible like restricting the export of sodium thiopental, an anesthetic, to the United States -- because some death penalty states use it in lethal injections. Not only is this gesture unlikely to prevent any executions -- it actually could put the lives and health of innocent Americans at risk." (2).
"No one who witnessed the execution has said Wood ever woke up. It simply took a long time for him to die." (The Execution of Joseph Rudolph Wood was NOT botched, EJ Montini, columnist, azcentral.com, 7/24/2014)
"In 1989, (Wood) hunted down and shot to death his former girlfriend, Debra Dietz, and her father, Eugene Dietz." "Debra Dietz's sister, Jeanne Brown, who was at the execution, said, 'Everybody here said (the execution) was excruciating. You don't know what excruciating is. Seeing your dad lying there in a pool of blood, seeing your sister lying there in a pool of blood, that's excruciating.' " (the Execution of Joseph Rudolph Wood was NOT botched, EJ Montini, columnist, azcentral.com, 7/24/2014)
My educated guess is that Lain left those four quotes out of her book. Why? Anti-death penalty activists appear to care more about guilty murderers than their innocent victims (3).
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Clayton Lockett: The Case for Execution
4) Bergen/Lain "The result is that courts give states wide leeway to do what they want, and many states take advantage, utilizing protocols that create serious risks of excruciating pain. In fairness, some states do use one-drug protocols that, while not without dangers, pose a much smaller risk of excruciating pain than the three-drug protocol. But many states retain the three-drug protocol, including several that carry out executions on a regular basis."
Rebuttal: The courts give great latitude because the courts are sick and tired of BS like Lain's and are thankful when the states fully inform the courts.
All kidding aside, the courts ruled the obvious, all the drugs discussed within the lethal injection protocols, as the protocols, do not violate the Eighth Amendment, which would be the threshold for law professors, but not for anti-death penalty activists, who happen to be professors.
5) Berger/Lain: "Even when states use "safer" first drugs, such as barbiturates that can anesthetize against excruciating pain, they often employ unqualified individuals to implement their protocols. Lain has consecutive chapters entitled "An Exceedingly Delicate, Error-Prone Procedure" and "Inept Executioners." The two topics fit well together. Because lethal injection procedures are delicate and error-prone, competent personnel are necessary to minimize the risk of suffering. Most states, however, don't employ competent personnel to perform the many tasks lethal injection requires, such as preparing the drugs, inserting the catheter into the prisoner's veins, monitoring anesthetic depth, and deciding when to "push" (that is, inject) the drugs. States, in other words, usually ask their employees to perform a very complicated, delicate task for which they are not qualified. No wonder botched executions are quite common."
Rebuttal: That is opposite reality and laughable, when realizing the willful ignorance of that comment.
Research confirms that all the first drugs can and do cause sleep, coma, unconsciousness, with normal, overdose and lethal overdose levels.
Botched lethal injection executions happen 1% of the time (not 7%, see link in para 1, above), or 8-23 murderers (0.6-1.4%) of the 1622 executions, 1977-2025.
How long would it have taken Lain and Berger to fact check and vet this, or others? 30 seconds:
Botched medical IV procedures, by medical personnel, in hospitals, are "69.7% (with) . . . at least one clinical error and 25.5% of these were serious." (see RESULTS, herein Errors in the administration of intravenous medications in hospital and the role of correct procedures and nurse experience - PMC)
25-70% vs 1%. Berger/Lain?
What Lain (Berger?), likely, left out.
Finding good veins in death row inmates is going to be more difficult than in the average medical patient. Why? IV illegal drug use, obesity, lack of exercise, other lifestyle issues and early onset geriatric conditions, each and collectively, can and do make IV insertion and retention more problematic with death row inmates than for an average medical patient. These would not be "botched", but the norm within responsible medical procedures, completed or not.
Yet, we still have this: 25-70% vs 1%. Berger/Lain?
Multiple needle pricks are not "botched" executions, but are the well known, responsible, process of finding good, secure veins so that the IV is secure throughout the process, the responsible method, as well known in medical procedures, for over a hundred years, which anti-death penalty folks have , fraudulently, re-labelled "botched" executions, when all know it is the responsible procedure for both medical IVs and executions.
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See Corinna Barrett Lain, herein:
Media Disaster: Nitrogen Hypoxia & Scientific American https://prodpinnc.blogspot.com/2022/09/media-disaster-death-penalty-scientific.html
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6) Berger/Lain: "Numerous factors explain this decline (in executions) including, among others, arbitrariness, racial bias, error, delay, and cost. Over the past decade, though, another significant factor has been high-profile problems with lethal injection. States have had difficulty getting the drugs, resulting in prolonged execution delays. States have badly botched executions--and continue to do so at high rates."
Rebuttal of all those points;
a) THE DEATH PENALTY: LEAST ARBITRARY & CAPRICIOUS SANCTION:
Nothing Else Comes Close
THE DEATH PENALTY: LEAST ARBITRARY & CAPRICIOUS
THE DEATH PENALTY: LEAST ARBITRARY & CAPRICIOUS
b) RACE & THE DEATH PENALTY: A REBUTTAL TO THE RACISM CLAIMS
http://prodpinnc.blogspot.com/2012/07/rebuttal-death-penalty-racism-claims.html
White murderers are twice as likely to be executed as are black murderers.
White murderers are twice as likely to be executed as are black murderers.
From 1977-2012, white death row murderers have been executed at a rate 41% higher than are black death row murderers, 19.3% vs 13.7%, respectively.
"There is no race of the offender / victim effect at either the decision to advance a case to penalty hearing or the decision to sentence a defendant to death given a penalty hearing."
For the White–Black comparisons, the Black level is 12.7 times greater than the White level for homicide, 15.6 times greater for robbery, 6.7 times greater for rape, and 4.5 times greater for aggravated assault.
As robbery/murder and rape/murder are, by far, the most common death penalty eligible murders, the multiples will be even greater, as one would expect.
"There is no race of the offender / victim effect at either the decision to advance a case to penalty hearing or the decision to sentence a defendant to death given a penalty hearing."
For the White–Black comparisons, the Black level is 12.7 times greater than the White level for homicide, 15.6 times greater for robbery, 6.7 times greater for rape, and 4.5 times greater for aggravated assault.
As robbery/murder and rape/murder are, by far, the most common death penalty eligible murders, the multiples will be even greater, as one would expect.
c) Error: There is a 99.6% accuracy rate with death penalty guilty findings, with the 0.4% "proven" factually innocent released (1), likely the most accurate of all criminal sanctions, as we would expect (4). Anti-death penalty folks have been lying about their higher numbers of the "innocent"/"exonerated", since 1998, as easily confirmed with fact checking and vetting (1).
d) Delay: Long delays are not necessary. Since 1976, Virginia has executed 113 murderers, within 7 years of appeals, on average. How? Responsible judges. That's all it takes. If Virginia can do it, all can. Obvious. 2-3 years at the state supreme court, 2 years at the federal district court and 2-3 years in federal circuit court. These cases, seldom, are accepted by SCOTUS.
Irresponsible and/or anti-death penalty judges, the case managers, will not allow responsible time controls (5).
e) Cost: Did Berger or Lain fact check the cost studies? Based upon vast experience, they did not. I did. The cost studies are fraudulent, wildly inaccurate and/or incomplete, as I detail (6) and, have never produced an apples to apples comparison of all death penalty costs to all life without parole costs (6), as, also, detailed. Read California, Texas. Maryland, Nebraska and Nevada, first, then move on (6).
f) THERE IS NO LETHAL INJECTION DRUG SHORTAGE & NEVER HAS BEEN
Fentanyl is, already, in the execution protocols, in Nevada and Nebraska.
Fentanyl is available, free, and in abundance, within police evidence rooms, throughout the country, with not all needed for evidence, with only tiny amounts needed for painless, quick executions, as we all know, with only testing needed, prior to execution.
How could anyone, in this debate, inclusive of Lain and Berger, not know that there has, never, been a shortage of lethal injection drugs, which, with fentanyl, has killed, in pill form, suddenly, and peacefully, countless thousands.
With IV, the effect is immediate:
"I would say you notice it [a fentanyl overdose] as soon as they are done [injecting the fentanyl]. They don't even have time to pull the needle out [of their body] and they're on the ground." (Here's What Happens During a Fentanyl Overdose, Sara G. Miller, LIVESCIENCE, April 13, 2017 Here's What Happens During a Fentanyl Overdose )
Wil Lain, Berger, Zivot, Sarat, and Denno or any anti-death penalty activist/physician/law professor/academic/journalist, recommend it? Of course not.
The last thing they want for murderers is a painless execution. How do we know they won't recommend it? Had they cared, they would have recommended it a decade ago.
added 5/11: Lain finds that purple fingers are signs of a problem with fentanyl execution. It is a sign that cardiac arrest has occurred and the lack of oxygen is evident within the farthest extremities from the heart, first, blue-ing, before taking over the entire body. I suspect the toes blue earlier. Lain?
6) Berger: "I offer a more comprehensive discussion of Secrets of the Killing State in my book review, "The Court and the Killing State," which is forthcoming in the Michigan Law Review. (I plan to blog more about Lain's great book once I've posted a draft of the review on SSRN.) The bottom line, though, is that this is a great book for anyone interested in the death penalty, the Eighth Amendment, or larger questions of justice in American society."
Rebuttal: Or, is it a great representation of anti-death penalty nonsense?
"More comprehensive"? Berger, did you fact check or vet, anything?
In Closing
If the above isn't enough, here is how easy it is to show anti-death penalty nonsense.
As a near ironclad rule, journalists care, very much, about not allowing readers to see both sides of this debate, today's journalism ethics.
Research, w/all sources, w/fact checking/vetting & critical thinking, as required of everyone in a public policy debate and which rebut all anti-death penalty claims.
The media/academic norm is to use anti-death penalty material, refuse to fact check or vet it and avoid all pro-death penalty research and experts. How will you know that is true? You haven't seen this material, prior.
The Death Penalty: Justice & Saving More Innocents
and
Students, Academics & Journalists: Death Penalty Research
(7 pro-death penalty experts are included)
600+ pro death penalty quotes from murder victim's families &
3300+ from some of the greatest thinkers in history
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FN
71-83% Fraud Rate in Death Row "Innocent" Claims,
Well Known Since 1998
2) "Europe's dangerous death penalty gesture", By Charles Lane, Washington Post, 2:39 PM ET, 02/ 1/2011,
The Washington Post - Breaking news and latest headlines, U.S. news, world news, and video - The Washington Post
The Washington Post - Breaking news and latest headlines, U.S. news, world news, and video - The Washington Post
3) 30 Examples: How Death Penalty Abolitionists Value Murderers
More Than Their Innocent Victims:
AKA - Full Rebuttal of Sir Richard Branson & His Death Penalty Comments
4) The Death Penalty: Super Due Process
5) These show what a problem judicial ignorance, deception or idiocy has become within the death penalty debate and how it must have affected their opinions. These tell us the judges and their clerks either refused to fact check and/or decided to be anti-death penalty activists.
Justice Breyer's Errors in Death Penalty Assessment
Judges, Solely, At Fault For California Death Penalty Disaster
Death Penalty: Judge Tom Price - Dead Wrong
"Judges as Jackasses"
Justice Elsa Alcala's Death Penalty Errors
Judges Responsible For Grossly Uneven Executions
Fixing Ohio's Death Penalty
Media Disaster: The Death Penalty
HOW MEDIA MURDERS THE TRUTH
Media Disaster: Death Penalty: Courts, states put death penalty on life support
Media Disaster: WHY FEWER DEATH SENTENCES AND EXECUTIONS?
6) Saving Costs with The Death Penalty
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Partial CV
