Why Oklahoma's Botched Execution is an Argument for ending Death Penalty

The commentary I have seen on Lockett’s wrongful death has largely ignored this extraordinary document from OK’s Director of Corrections, Robert Patton:
link to media.cmgdigital.com
This timeline of the event requires some medical knowledge to interpret, and there are details it doesn’t go into, but it makes very clear two important points:
1) OK’s procedure for the execution was not followed
2) The execution had been halted 10 minutes before Lockett died
You don’t often see a medical misadventure documented with this much candor.

The timeline makes it reasonably clear that OK’s execution protocol calls for IV sedation (the midazolam, or Versed) to unconsciousness, followed by an IV paralytic (the Vecuronium), and then IV potassium chloride (KCl) to stop the heart.

Now, this protocol isn’t really experimental. Versed/Vecuronium IV is a very common combination to use to initiate anesthesia. And a reasonable size bolus of KCl IV would very reliably stop the heart very rapidly. If you accept the premise that execution in any form is acceptable (not something I accept), but wish to stay within the parameters of the 8th Amendment, then following this protocol would be a very safe way to execute without gratuitous pain or suffering, thus avoiding cruelty, as the condemned would be anesthetized at the moment the lethal agent is administered.

In this case, though, the timeline makes clear that IV access was never obtained, and much worse, the lack of access was not acknowledged by the doctor in attendance, yet these agents were pushed into the victim anyway. Since either these agents, delivered intramuscularly (IM) rather than IV, caused death, or the unsuccessful attempt at IV access caused death by nicking an artery, Lockett was killed in a way not permitted by OK law. OK had a protocol in place designed to keep it within the 8th Amendment, but it allowed its agents to do something very different than its own stated standards for avoiding cruelty.

This is not a case of a simple medical mistake, or insufficiency of expertise. You can’t always get IV access, or you can get IV access and then lose it, and that means that perhaps you’re not as technically proficient as you might be (though it can also mean that your patient simply can’t be accessed), but it doesn’t mean you’ve done anything wrong. But you can’t be mistaken about whether you have IV access, and push drugs without moral certainty that you have access, without doing something very unambiguously wrong. The doctor in attendance either knows nothing about IV medication, in which case OK should never have credentialed him to oversee the administration of IV drugs, or he acted in malice, and intentionally caused a wrongful death. That’s not just malpractice, that’s murder.

This issue of IV access really is the nub of the matter, so let me expand on it a bit. The timeline reports that the phlebotomist couldn’t find peripheral vein access, and that therefore the doctor was called in to place a central venous line, and chose one of the femoral veins. Now, success at peripheral access can be ambiguous at first, as these veins are small bore enough that some resistance to push or pull on the syringe is expected, and you can’t push or pull with too much force or the vein can collapse or burst. But even with peripheral access, you can tell unambiguously within minutes if you’re in or not in, by whether IV fluid will go in unimpeded and without any pressure beyond the gravity behind a foot or so of height difference between the IV bag and the patient’s heart level. With a central vein, such as the femoral vein, you don’t even have to wait on that test. If blood comes back freely if you pull on the syringe, and your IV fluids goes in freely if you push — free antegrade and retrograde flow — that means you’re in. Failure to obtain such free flow in both directions means you’re not in. There is no ambiguity. In a central vein, such as the femoral vein, you guard against the possibility that you have lost access by repeating this simple test to insure free flow both ways, right before pushing any agent through the access.

In this case, even had the doctor failed to do this test before pushing the Versed, he had to have known 7 minutes later, when the timeline says he checked for consciousness and found Lockett still conscious, that the Versed had not gone into the vein. Many of your readers probably have direct experience, if they have ever had a screening colonoscopy, of having Versed pushed and being asked to count backwards from ten. Nobody makes it to one, and most people don’t get to six. Failure of Versed to have sedated fully by seven minutes after it was pushed means that it had not been pushed into a vein, period. It meant that the IV was not in the vein, period. But the doctor then proceeded anyway to push a paralytic and the KCl into what he knew at that time was an IM injection, not an IV push.

The fact that Lockett didn’t die immediately after the KCl was pushed should have been further unambiguous proof that it had been pushed into some other space than the vein, yet the timeline implies that it took 9 minutes for the doctor to realize that something had gone wrong and to check the IV. By this time Patton was on the phone with the scene, and he was given the obviously incorrect excuse the vein had collapsed. Central veins don’t collapse. Even if this one had collapsed, it should have been checked for free retrograde and antegrade flow before each agent was pushed.

At this point, Patton must have realized he and OK had a serious problem on their hands, so he documents asking the doctor questions designed to establish whether the execution could still be carried out under OK law. The answers he received indicated that the execution could not be carried out under law, therefore he ordered that the execution be halted at 1756. At 1806, Lockett died.

To say that he died of “a massive heart attack” is to say nothing. He died of cardiorespiratory arrest, which is the final common pathway of any and all deaths. It almost certainly wasn’t the KCl that made his heart stop. Potassium is not itself inherently toxic. You probably know someone on KCl as a medication. Administered IM, it would not be expected to get into the bloodstream rapidly enough to stop the heart, and the excess K from a slow leak into the bloodstream from an IM injection would be excreted harmlessly by the kidneys.

Vecuronium and Versed IM, however, could cause delayed death by asphyxiation. The Versed would depress the respiratory drive, and the Vecuronium would weaken, if not paralyze, the diaphragm. If this was the cause of death, respiratory failure, then it could have been easily prevented by intubating Lockett. The Versed and Vecuronium would have been out of his system within 24 hours and he could then have been able to breath on his own. At this point, the execution had been halted, and Lockett was as entitled to life-saving measures as anyone, and the doctor and the OK prison system had as much duty to provide these measures as they had to provide them to anyone in need of intubation to survive.

It is also possible that Lockett bled to death from having his femoral artery nicked by the cannula intended for the femoral vein.. It is less certain that he could have been saved in that case by the time the execution was called off, but still possible.

Now, some might take this discussion to be somehow a defense of the general practice of execution, that it might be done humanely and within the 8th Amendment if only it is done competently. That is not my intent. There is a huge difference between anesthesia, flawlessly administered, done for the benefit of a patient, who knows as it is being done that it is to benefit him, and who therefore consents to its being done, and the very same anesthesia done in the course of killing a victim. People consent to the horrific invasions of their body involved in open heart surgery, and face that ordeal with calmness and courage, because they accept the ordeal as the price for continuing to live. But even Scalia would refuse to allow open heart surgery to be done on the worst criminal unwillingly, as a punishment, and not for any medical purpose. That would be monstrously and obviously cruel.

The point of showing how this particular execution was done wrongly, is that people like us who want to end capital punishment are simply not going to prevail directly, immediately, and categorically. The 8th Amendment simply does not at all unambiguously forbid capital punishment.

But people who are against capital punishment can use individual cases such as this to make capital punishment practically, if not categorically, impossible. At least the doctor in this case, and probably others in the prison system, need to be punished. There can be no defense of their actions based on the idea that capital punishment is not cruel or unusual. OK has expressed itself on what is cruel and unusual in capital punishment, and by establishing the protocol they passed into law, they have already admitted that what they did to Lockett violated the 8th Amendment.

It would seem that even before this travesty, OK had trouble finding a competent doctor to oversee its executions. Take this doctor’s license away, sue him, and send him to prison (murder is a state offense, and perhaps OK can’t be trusted to prosecute for murder, but Lockett’s civil rights were violated, and that’s a federal crime), and you can bet that OK will not be able to find even an incompetent doctor next time it wants to judicially murder someone.

That may be less intellectually satisfying than a categorical ban on executions, but it would get the job done, so it’s worth doing.

3 Responses

Jay L
says:
2014.05.01 06:32

This will not change anything in Oklahoma. Um…it likely will cause some experimentation in how to do an execution, but it will not affect the political will to continue with lethal punishment. Oklahoma takes pride in striving to be the most “old school” state in America. The typical reaction is that a painful execution is the best kind of execution. On the other hand, people in other states will continue to question the barbarity of capital punishment.
Farhang Jahanpour
says:
2014.05.01 07:04

In Britain, the Parliament abolished capital punishment for murder in 1965, and it was abolished in all circumstances in 1998. The last execution was carried out in 1964. There has been no indication that ending capital punishment has resulted in an increase in major crimes. On the contrary, crime rates have been falling for many years. The state should not be allowed to execute its citizens, for you cannot stop one crime with another crime. An eye for an eye is a barbaric teaching that belongs to less civilized times. As Gandhi said “An eye for an eye will make the whole world blind.”
Glen Tomkins
says:
2014.05.05 12:36

The commentary I have seen on Lockett’s wrongful death has largely ignored this extraordinary document from OK’s Director of Corrections, Robert Patton:
link to media.cmgdigital.com
This timeline of the event requires some medical knowledge to interpret, and there are details it doesn’t go into, but it makes very clear two important points:
1) OK’s procedure for the execution was not followed
2) The execution had been halted 10 minutes before Lockett died
You don’t often see a medical misadventure documented with this much candor.

The timeline makes it reasonably clear that OK’s execution protocol calls for IV sedation (the midazolam, or Versed) to unconsciousness, followed by an IV paralytic (the Vecuronium), and then IV potassium chloride (KCl) to stop the heart.

Now, this protocol isn’t really experimental. Versed/Vecuronium IV is a very common combination to use to initiate anesthesia. And a reasonable size bolus of KCl IV would very reliably stop the heart very rapidly. If you accept the premise that execution in any form is acceptable (not something I accept), but wish to stay within the parameters of the 8th Amendment, then following this protocol would be a very safe way to execute without gratuitous pain or suffering, thus avoiding cruelty, as the condemned would be anesthetized at the moment the lethal agent is administered.

In this case, though, the timeline makes clear that IV access was never obtained, and much worse, the lack of access was not acknowledged by the doctor in attendance, yet these agents were pushed into the victim anyway. Since either these agents, delivered intramuscularly (IM) rather than IV, caused death, or the unsuccessful attempt at IV access caused death by nicking an artery, Lockett was killed in a way not permitted by OK law. OK had a protocol in place designed to keep it within the 8th Amendment, but it allowed its agents to do something very different than its own stated standards for avoiding cruelty.

This is not a case of a simple medical mistake, or insufficiency of expertise. You can’t always get IV access, or you can get IV access and then lose it, and that means that perhaps you’re not as technically proficient as you might be (though it can also mean that your patient simply can’t be accessed), but it doesn’t mean you’ve done anything wrong. But you can’t be mistaken about whether you have IV access, and push drugs without moral certainty that you have access, without doing something very unambiguously wrong. The doctor in attendance either knows nothing about IV medication, in which case OK should never have credentialed him to oversee the administration of IV drugs, or he acted in malice, and intentionally caused a wrongful death. That’s not just malpractice, that’s murder.

This issue of IV access really is the nub of the matter, so let me expand on it a bit. The timeline reports that the phlebotomist couldn’t find peripheral vein access, and that therefore the doctor was called in to place a central venous line, and chose one of the femoral veins. Now, success at peripheral access can be ambiguous at first, as these veins are small bore enough that some resistance to push or pull on the syringe is expected, and you can’t push or pull with too much force or the vein can collapse or burst. But even with peripheral access, you can tell unambiguously within minutes if you’re in or not in, by whether IV fluid will go in unimpeded and without any pressure beyond the gravity behind a foot or so of height difference between the IV bag and the patient’s heart level. With a central vein, such as the femoral vein, you don’t even have to wait on that test. If blood comes back freely if you pull on the syringe, and your IV fluids goes in freely if you push — free antegrade and retrograde flow — that means you’re in. Failure to obtain such free flow in both directions means you’re not in. There is no ambiguity. In a central vein, such as the femoral vein, you guard against the possibility that you have lost access by repeating this simple test to insure free flow both ways, right before pushing any agent through the access.

In this case, even had the doctor failed to do this test before pushing the Versed, he had to have known 7 minutes later, when the timeline says he checked for consciousness and found Lockett still conscious, that the Versed had not gone into the vein. Many of your readers probably have direct experience, if they have ever had a screening colonoscopy, of having Versed pushed and being asked to count backwards from ten. Nobody makes it to one, and most people don’t get to six. Failure of Versed to have sedated fully by seven minutes after it was pushed means that it had not been pushed into a vein, period. It meant that the IV was not in the vein, period. But the doctor then proceeded anyway to push a paralytic and the KCl into what he knew at that time was an IM injection, not an IV push.

The fact that Lockett didn’t die immediately after the KCl was pushed should have been further unambiguous proof that it had been pushed into some other space than the vein, yet the timeline implies that it took 9 minutes for the doctor to realize that something had gone wrong and to check the IV. By this time Patton was on the phone with the scene, and he was given the obviously incorrect excuse the vein had collapsed. Central veins don’t collapse. Even if this one had collapsed, it should have been checked for free retrograde and antegrade flow before each agent was pushed.

At this point, Patton must have realized he and OK had a serious problem on their hands, so he documents asking the doctor questions designed to establish whether the execution could still be carried out under OK law. The answers he received indicated that the execution could not be carried out under law, therefore he ordered that the execution be halted at 1756. At 1806, Lockett died.

To say that he died of “a massive heart attack” is to say nothing. He died of cardiorespiratory arrest, which is the final common pathway of any and all deaths. It almost certainly wasn’t the KCl that made his heart stop. Potassium is not itself inherently toxic. You probably know someone on KCl as a medication. Administered IM, it would not be expected to get into the bloodstream rapidly enough to stop the heart, and the excess K from a slow leak into the bloodstream from an IM injection would be excreted harmlessly by the kidneys.

Vecuronium and Versed IM, however, could cause delayed death by asphyxiation. The Versed would depress the respiratory drive, and the Vecuronium would weaken, if not paralyze, the diaphragm. If this was the cause of death, respiratory failure, then it could have been easily prevented by intubating Lockett. The Versed and Vecuronium would have been out of his system within 24 hours and he could then have been able to breath on his own. At this point, the execution had been halted, and Lockett was as entitled to life-saving measures as anyone, and the doctor and the OK prison system had as much duty to provide these measures as they had to provide them to anyone in need of intubation to survive.

It is also possible that Lockett bled to death from having his femoral artery nicked by the cannula intended for the femoral vein.. It is less certain that he could have been saved in that case by the time the execution was called off, but still possible.

Now, some might take this discussion to be somehow a defense of the general practice of execution, that it might be done humanely and within the 8th Amendment if only it is done competently. That is not my intent. There is a huge difference between anesthesia, flawlessly administered, done for the benefit of a patient, who knows as it is being done that it is to benefit him, and who therefore consents to its being done, and the very same anesthesia done in the course of killing a victim. People consent to the horrific invasions of their body involved in open heart surgery, and face that ordeal with calmness and courage, because they accept the ordeal as the price for continuing to live. But even Scalia would refuse to allow open heart surgery to be done on the worst criminal unwillingly, as a punishment, and not for any medical purpose. That would be monstrously and obviously cruel.

The point of showing how this particular execution was done wrongly, is that people like us who want to end capital punishment are simply not going to prevail directly, immediately, and categorically. The 8th Amendment simply does not at all unambiguously forbid capital punishment.

But people who are against capital punishment can use individual cases such as this to make capital punishment practically, if not categorically, impossible. At least the doctor in this case, and probably others in the prison system, need to be punished. There can be no defense of their actions based on the idea that capital punishment is not cruel or unusual. OK has expressed itself on what is cruel and unusual in capital punishment, and by establishing the protocol they passed into law, they have already admitted that what they did to Lockett violated the 8th Amendment.

It would seem that even before this travesty, OK had trouble finding a competent doctor to oversee its executions. Take this doctor’s license away, sue him, and send him to prison (murder is a state offense, and perhaps OK can’t be trusted to prosecute for murder, but Lockett’s civil rights were violated, and that’s a federal crime), and you can bet that OK will not be able to find even an incompetent doctor next time it wants to judicially murder someone.

That may be less intellectually satisfying than a categorical ban on executions, but it would get the job done, so it’s worth doing.

Comments are closed.

Why Oklahoma’s Botched Execution is an Argument for ending Death Penalty

3 Responses