Fentanyl and the Future of Capital Punishment

On Aug. 14, 2018, Nebraska became the first US state (probably the first in the world) to execute a death row inmate using a lethal injection “cocktail” that included the synthetic opioid fentanyl. (The other drugs were the tranquilizer Valium or diazepam, the muscle relaxant Nimbex or cisatracurium besylate, and the chemical salt potassium chloride.) Fentanyl is the poster boy for the opioid crisis in the United States, responsible for the deaths of rock greats Prince and Tom Petty, and a preponderance of other, less famous drug overdose fatalities in the US recently. One could well wonder why such a drug would be used now in state-sponsored executions and whether it is less or more humane than other drugs or modes of execution.

What is Fentanyl?

Fentanyl is a dangerous, albeit legal opioid drug, most often prescribed for extreme pain following surgery and for terminal cancer patients. According to the National Institute on Drug Abuse, “Fentanyl is a powerful synthetic opioid analgesic that is similar to morphine but is 50 to 100 times more potent”. Fentanyl works by binding to opioid receptors in the brain, increasing levels of dopamine that cause euphoria and relaxation but also can cause “drowsiness, nausea, confusion, constipation, sedation, tolerance, addiction, respiratory depression and arrest, unconsciousness, coma, and death.” According to the Centers for Disease Control and Prevention, of the more than 72,000 Americans who died from drug overdoses in 2017, more than 29,000 deaths involved non-methadone synthetic opioids, predominantly fentanyl. That’s 10,000 more than overdose deaths from prescription opioids (such as OxyContin and Percocet—oxycodone—and Vicodin—hydrocodone) and almost twice the rate of heroin. Fentanyl became a stealth drug of abuse – its abusers often don’t know what they are taking—because it is relatively easy to synthesize, is cheaper than heroin and prescription opioids, and can be pressed into pill form. Because it is so potent, a significant quantity can fit into a tiny package, too, making it easier to smuggle—say, through the US mails from China. It also is easy to miscalculate the dosage, causing an accidental, fatal overdose. Two years ago news reports claimed you could fatally overdose on fentanyl if you just touched it with your bare hand. Reports also circulated that police dogs have OD’d just by walking on trace amounts of fentanyl or sticking their nose in a pile of it, prompting the creation of special canine first aid kits. (That’s probably not true; many of the original sources for claims of such toxicity have walked it back.) So, it’s potent, a painkiller, and can kill you. No doubt that’s one reason Nebraska decided to use it.

Capital punishment

The death penalty can have many motivations, primarily deterrence (dissuading others from committing the crime) and prevention (stopping a perpetrator from repeating the crime). In aid of those goals, the death has sometimes been a public spectacle and as painful and gruesome as the human mind could conceive: placing rocks on the perpetrators’ chests until crushed, crucifixion, burning alive, impalement, burial while alive, flaying the skin and even placing them in a sack with several animals and tossing them in the water to drown. In more recent and enlightened times, perhaps in an effort to placate the sensibilities of death penalty opponents, the goal has been to make the death as painless and quick as possible. Since at least the 1689 English Bill of Rights, governments that proclaim themselves to be civilized, democratic, and to recognize basic human rights have sought to avoid so-called “cruel and unusual punishment”. When a new method or device comes along, claiming to be quicker and less painful—more humane—officials seem eager to adopt it. According to Austin Sarat—author of Gruesome Spectacles: Botched Executions and America’s Death Penalty and a capital punishment opponent—“With each development in the technology of execution, the same promises have been made, that each new technology was safe, reliable, effective and humane. Those claims have not generally been fulfilled.” Before lethal injection became the norm, execution by the gas chamber—an airtight room where a cyanide pellet is dropped into acid, releasing a fatal vapor—was the state-of-the-art, and before that the electric chair. Hanging, too, was a popular low-tech method (all you need is a rope, something to suspend it from, and a hangee). Every method has its problems. According to Sarat, from 1890 to 2010, three percent of all US executions qualify as “botched”, as have just over 7 percent of lethal injections since 1980. “Botched” doesn’t mean the subjects didn’t die, but rather that it took them too long or something else went wrong:
  • Hanging. The neck fails to snap so the prisoner slowly strangles or, in some cases, is decapitated.
  • Electric chair. The prisoner doesn’t die right away, burns or actually catches fire.
  • Gas chamber. Death takes too long so the prisoner slowly chokes to death.
Sarat also adds, reluctantly, that statistics suggest the method with the fewest incidences of “botches”—zero—is by firing squad. Not that he recommends the method. All methods have the undesired consequence that it is hard for many modern people to look at. Arguably, the methods actually change so watching executions is easier for witnesses, not out of concern for prisoners.

Lethal injection

Lethal injection was supposed to fix that problem. It looks as pain-free, antiseptic and boring as any routine medical procedure. The prisoner is on a gurney and is administered the injection via an intravenous tube. It has become the preferred method throughout the US. In 1977 Oklahoma passed a lethal injection statute, based on a two-drug protocol devised by medical examiner Jay Chapman: a barbiturate and a paralytic. The barbiturate sedates the prisoners and reduces their pain and—in large enough doses—is fatal in itself. The paralytic is intended to prevent them from moving around too much. Death penalty opponents claim that the paralytic also prevents anybody from seeing if the prisoner is experiencing “cruel and unusual” pain. Later, a three-drug protocol was adopted by 36 states: “first, an anesthetic to render the prisoner unconscious; second, a paralyzing agent to render him immobile; and third, potassium chloride to stop his heart.” But even though they look like medical procedures, they aren’t always performed by a medical professional. That’s because many major healthcare professional organizations forbid their members from participating in executions, including the American Medical Association, American Nurses Association, American College of Physicians, and American Public Health Association. Some do anyway, perhaps because only 3% of respondents said they were aware of the prohibition. For its current cocktail, Nebraska used four drugs, three of which they had never used for such a purpose. Adding a fourth drug was probably a safety measure to reduce the chances of a botch. Making lethal injection more “safe, reliable, effective and humane”, is one reason the drugs involved have changed over time, but there is an increasingly important one: Because the states can’t get the other drugs any longer and their existing supplies are exhausted.

Drug Companies

Specifically, the pharmaceutical companies that produce and sell the drugs used in the lethal cocktail don’t want to sell them for purposes of execution any longer. The drugs have other, non-lethal uses, but doctors and researchers might choose other drugs because of the association with death. Nevada was slated to be the first state to administer a lethal injection cocktail including fentanyl in July but was prevented by a lawsuit from Alvogen, the maker of one of the other drugs. German pharmaceutical company Fresenius Kabi tried and failed to do the same in Nebraska with a similar suit. No pharmaceutical companies want to be connected with lethal injection for financial if not moral reasons. Allegedly all references to the Nazi gas chambers were bleeped in a 1959 Playhouse 90 TV production of “Judgment at Nuremberg” because one of the sponsors was the American Gas Association, who “feared that references to the gas chambers used to exterminate prisoners in the concentration camps would create negative associations with the natural gas used to heat American homes and fuel cooking appliances”. In the European Union, where the makers of many of these drugs are based, the death penalty is outlawed. Drug companies get enough bad press for expensive, ineffective, or actually harmful and addictive drugs. Facing protests or boycotts for a use of their products of which they don’t approve or want is not desirable. Since the pharmaceutical companies didn’t knowingly supply the drugs for Nebraska’s execution, they also question how Nebraska obtained the drugs in the first place. Nebraska denies using under-handed tactics or going to illegal or black-market suppliers, but won’t say specifically who did supply the drugs.

Objections to the Death Penalty

Although observers say the Nebraska execution went off without a snag, opponents are waiting for the official autopsy. Even if it did, the makers of fentanyl may not willingly supply the drug to prisons in the future. One of three things will happen:
  • New methods of execution will be devised. In March of 2018, Oklahoma announced “plans to resume executions by using nitrogen or another gas to starve an inmate of oxygen because it cannot obtain the drugs needed for lethal injections”. The inert gas, which “induces unconsciousness and then depletes oxygen until there’s brain death,” has never been used for execution but has been used for assisted suicide.
  • Older methods—firing squad, the electric chair—will be revived despite earlier concerns. Electricity and bullets aren’t subject to the same manufacturer controls as drugs.
  • The death penalty in the US will be outlawed. Although the question of whether the popularity of the death penalty in the US is waxing or waning is disputed, barely 55% admitted to being in favor of it in the latest Pew Research and Gallup polls.
One possible reason for the decline in the popularity of the death penalty may be that it can be wrong. There already are concerns about innocent people being executed, given the number of exoneration due to DNA testing. The American Civil Liberties Union says that as of September 2011, 17 people on death row had been exonerated based on DNA evidence. The Innocence Project says that 20 of the prisoners it exonerated spent time on death row. And the Death Penalty Information Center lists 162 people (as of April 19, 2018) who it says were on death row and later exonerated, had their cases dismissed, or pardoned “based on evidence of innocence”. It may not even work, at least in the sense of deterrence. According to a 2009 study in the Journal of Criminal Law and Criminology, 88% of criminologists don’t believe the death penalty deters homicides or otherwise impacts on crime rates. Another, less noble possible reason: the cost. The cost of the trial, the appeals, and incarceration for death penalty cases range from four to 10 times as much as similar cases without the death penalty on the table. Whatever the future of the death penalty in the US, fentanyl is unlikely to be a long-term or effective solution.

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