ALS and the 8th Amendment

Death Valley - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com

8th Amendment United States Constitution:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The 8th Amendment to the Constitution is based on the English Bill of Rights of 1689. The United States Supreme Court ruled that the “cruel and unusual punishment” provision applies to state as well as federal jurisdictions and includes both official and non official punishments. Of all the Bill of Rights, the “cruel and unusual” section of the 8th Amendment has changed the most since its inception as societal norms regarding punishment have evolved.

There is a raging legal controversy whether any form of execution constitutes cruel and usual punishment. Opponents of the death penalty contend the most benign method, lethal injection, is cruel and unusual even though thousands of patients undergo similar techniques when experiencing general anesthesia daily. This method of execution is unusual only by the degree of painlessness in which it can be given. The condemned is rendered unconscious by an enormous dose of intravenous anesthesia, followed by a lethal dose of paralyzing agent, and finally potassium to stop the heart.

Cruel and unusual punishment is administering only the paralyzing medication through the intravenous line. The mixture is given slowly in small doses, so the fully conscious victim can breath but just barely. It is impossible to move the arms or legs or even swallow. Imagine the agony of suffocating while being completely aware of the situation. The most ardent proponent of the death penalty could not morally support this degree of sadism. No one in society must involuntarily bear this degree of torture except, of course, patients in the terminal stages of Amyotrophic Lateral Sclerosis (ALS).

Last year my friend was diagnosed with ALS or Lou Gerhig’s Disease. There is no known cause or cure, and patients are faced with declining neuromuscular function throughout the course of the disease. In the final stages they are unable to swallow or breath and cannot survive without a feeding tube and ventilator. Those who resist aggressive medical intervention face the prospect of suffocating shortness of breath and starvation while being fully awake and aware.

Considering the nature of this terrible disease, patients are compelled to devise end of life care plans to cope with deteriorating muscle function. Those who elect not to prolong life by artificial means must let the disease relentlessly progress or resort to measures which hasten the process. For patients and their families these complex decisions are best made when physicians and end of life specialists present all the options. If the stress was not enough, ALS patients who live in states whose laws do not sanction assisted suicide are treated as criminals if they elect to prematurely terminate life by this method.

Contrast this scenario with the prisoner sentenced to death. Death penalty opponents interpret the 8th Amendment so strictly that no method of execution satisfies the constitutional requirement. This munificence is extended to the most vicious, pathologic criminals, but what about the innocent victims of ALS? Is it not cruel and unusual punishment that they are denied legal medical care to ease their torment and allow them to pass in a dignified and gentle manner?

In states with assisted suicide laws most patients who register in the program do not commit suicide. The solace of having a choice of when and how to end one's life often is enough to let matters take the natural course. Patient choice under these dreadful circumstances is the only humane alternative. Are not the victims of ALS entitled to the same rigorous protections under the Constitution as the criminal?

Lethal Injection - Not So Cruel

Zion National Park - photo by JoAnn-Sturman

Scott Sturman
fliesinyoureyes.com

Several years ago while driving to work I listened to an NPR reporter’s witnessed account of an execution by lethal injection at San Quentin Prison. After administration of sodium pentothal to the criminal she described his chest as “heaving violently as if in pain.” This observation struck me as inaccurate and disingenuous. It was inconsistent with a twenty-five year experience as an anesthesiologist and incorrectly portrayed a person's physiologic response to intravenous sodium pentothal.

When sodium pentothal is injected into a vein, the patient is rendered unconscious within a few seconds. Unlike the sedative propofol used in general anesthesia, there typically is no pain with a sodium pentothal injection, and it is common for the patient to take one large, final breath when falling rapidly into a profound drug induced coma. This respiratory reflex is so usual that in anesthesiology training programs it is referred to as an “agonal” breath. The dose of sodium pentothal used for lethal injection is ten times the normal clinical dose. This is a lethal dose in its own right; it is virtually impossible for the condemned to be aware of the execution process.

There are two minor technical problems which complicate lethal injection and may lead to a failed execution. The first is the lack of skilled technicians who are experienced with starting intravenous lines. Difficulty or the inability to secure an intravenous line has been described in the sensational press and by death penalty opponents as “cruel and unusual punishment.” The second is to give the muscle paralyzing drug before the sodium pentothal has cleared the IV line. In this case the drugs will form a solid precipitate and at times render the IV useless. This week the state of Ohio announced it will use a single intramuscular injection technique to obviate the problems with intravenous access.

On November 13, 2009 the Death Penalty Clinic at the University of California Berkeley School of Law issued this following statement in response to the state of Ohio's one drug execution mandate:

“Ohio has become the first death penalty state to abandon the practice of paralyzing inmates before executing them. ...they will no longer use a paralyzing drug or the excruciatingly painful potassium chloride to execute inmates. Instead, executions will involve an overdose of one drug ...”

“This is a significant step forward,” added Ty Alper, Associate Director of the Death Penalty Clinic. “Paralyzing inmates before executing them – so we can't tell whether they are suffering – is a barbaric practice...”

The advocates at the Death Penalty Clinic conveniently ignore the order and timing in which drugs given to an inmate during an execution. Given alone or in a different order the described symptoms can occur, but given the established protocols their claims are preposterous. The technique of lethal injection provides a merciful and painless method of execution – the prisoner drifts into sleep just as millions of surgical patients do each year. The procedure begins with a huge dose of sodium pentothal- ten times the normal anesthetic dose. Following unconsciousness which occurs in seconds and lasts for many minutes, ten times the normal dose of a skeletal muscle paralyzing agent is administered. Again this effect occurs in seconds, and there is no awareness on the part of the criminal. With no muscular function no breathing occurs. Finally, potassium chloride is injected which fibrillates the heart. This injection would be painful to an awake patient, but in this case the inmate is in the state of profound coma. All three medications given at these doses insure death, but they are administered intentionally in a logical order – sleep, paralysis, cardiac arrest.

Opponents of capital punishment realize authorities have developed a humane method of putting criminals to death. False statements and exaggeration are used to undermine the process, for if lethal injection is held unconstitutional, then no method of execution can satisfy the inordinately strict interpretation of cruel and unusual punishment.