Consider This from NPR - An NPR Investigation Into Lethal Injection: Why It Could Amount To Torture

Episode Date: October 12, 2020

Lethal injection is commonly thought of as the most painless method of execution. But now many lawyers and doctors are looking inside the bodies of executed inmates and making the case that lethal injection could amount to torture.To take a closer look at this claim, NPR producer Noah Caldwell and a team at All Things Considered obtained more than 300 inmate autopsies through Freedom of Information Act requests. It's the largest collection of lethal injection autopsies in the U.S. They found that more than 80% of the inmates may have experienced the sensation of drowning. Read and listen to the entire investigation here. In participating regions, you'll also hear a local news segment that will help you make sense of what's going on in your community.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

So his temperature is like on a low grade. And did he get the Ciprep? Did he get a dose of that? In 2016, Dr. Joel Zivitt, an anesthesiologist at Emory University Hospital, was taking a look at some autopsies. What I was asked to address was the blood levels of certain kinds of medications. You see, these were autopsies of inmates who had been executed by lethal injection. Federal defenders had hired Zivit to help them figure out whether these inmates had been adequately anesthetized during their executions. And what Zivit noticed was something peculiar. So I began to see a pattern of organ failure where I saw that instead of what I thought would be pristine findings, instantaneous death, I began to see a picture that was more consistent with a slower death, a death associated with suffering. What Zivitz saw were unusually heavy lungs, lungs swollen with fluid, which meant

these inmates could very well have experienced the sensation of drowning or suffocation before they died. It was a stunning finding because here was some physical document that could answer a question that could otherwise not be answered, which was, what exactly is the most painless method of execution. But now many lawyers and doctors are looking inside the bodies of executed inmates and making the case that lethal injection could amount to torture. From NPR, I'm Elsa Chang. It's Monday, October 12th. We were hunted by police. We were literally physically hunted. You'd be standing on the corner, drug squad pull up, everybody around. New from NPR Music. Listen to Louder Than a Riot.

It's Consider This from NPR. We'll get to those inmate autopsies in a minute. But first, I want you to meet Norman Stout. Just a quick warning, his story contains details of a violent crime that some listeners might find upsetting. Norman Stout is 90. He lives in New Concord, Ohio, in a home that's still full of the Holly Hobby figurines his wife Mary Jane once treasured. There's over 1,200 different items here. They first met when Norman was 21 and still in the Air Force. I probably had the only brand new automobile on the base.

So that made you quite the eligible bachelor. Might have been. She must have found something. I couldn't figure out why, but I'm extremely proud that she did. Norman and Mary Jane raised three sons together, who all happened to be out of the house on the night of May 14, 1984. That's when two young men appeared on the Stout's doorstep, just a few miles from where he lives now. One had a mustache, and the other one, there was nothing distinguished about him. Norman says the men asked to use their telephone. They said they were having trouble with their car, so he let them in. And then they drew their guns. It was a robbery.

After the chill run down my spine, I knew I was in trouble because I had no way of protecting my wife. The stouts were ordered into a back bedroom. That's when Norman lunged at one of the men. He shot me from across the bed right there. On the top of your head. That bullet is still in there. Full, complete bullet. Then they turned on his wife. I heard four shots because I couldn't shut my ears. I could shut my eyes, but not my ears. Norman's wife, Mary Jane, was dead, and Norman would learn he would never be able to control the left side of his body again.

Months later, a man named John Stumpf was sentenced to death for the murder of Mary Jane Stout, but his execution has been delayed over and over again. What is the system that takes 35 years? I don't know. You have to admire it that it can get away with 35 years of doing nothing. One of the reasons Norman Stout is still waiting for John Stump's execution after 35 years can be found in these autopsies. You see, last year, a federal judge in Ohio saw evidence that inmates' lungs were filling with fluid as they were being executed. And that judge ruled that such a death amounted to cruel and unusual punishment. Then the governor of Ohio delayed all upcoming executions over fears that inmates might experience the sensation of drowning or suffocation as they died.

To take a closer look at this claim, a team here at NPR's All Things Considered obtained more than 300 inmate autopsies through Freedom of Information Act requests. It is the largest collection of lethal injection autopsies in the US. These autopsies cover executions in nine states, dating from 1990 to 2019. And what we found was that inmates' lungs had filled with fluid 84% of the time. One of our producers at All Things Considered, Noah Caldwell, got us started on this project, and he joins me now. Hey, Noah. Hey, Elsa. So how did you first get interested in all of this?

So I was tipped off to this by Joel Zivett, that doctor that we met at the top. And it struck me as something that's been missing from the debate over the death penalty. The coverage of the death penalty is often focused on whether inmates might actually be innocent or not, whether the death penalty is a deterrent for violent crime or they focus on individual botched executions. And these are all important issues, of course, but it's easy for them to get politicized. There's a lot of emotion in them. But here we had data that came straight from the bodies of inmates themselves. This was objective physiological information that could kind of cut through that debate a little bit.

Right. As if these inmates are now given a chance to literally show what it was like to be executed, even though they're dead now. Right. And there have been enough lethal injections now for there to be this cumulative body of autopsies to examine. So that seemed like a natural jumping off point for our reporting. And what did you find? Okay, so I have an autopsy in front of me here just to use as an example. It's of a man named Robert Van Hook. And he was executed in July 2018 in Ohio. And witnesses say that during the execution, his chest started heaving. And then he gasped for air loud enough that they heard it in the next room. And during the autopsy, they found bloody froth in his airways. So his lungs were filling up with fluid. Right. So let's walk through how this happens. Most lethal injections use three drugs,

one after another. And we're going to focus on the first drug. This is the drug that's supposed to anesthetize the inmate. And in Robert Van Hook's case, it was a common drug used in dozens of executions in recent years called midazolam. Midazolam. And that drug is used safely in hospitals every day. It's often used to calm people down before surgeries. But the way this drug is injected during an execution

explains why inmates develop pulmonary edema so often. And I found the perfect person to explain this. Yeah, it's very interesting. The lung is special. This is Philippe Camus. He's a doctor in Dijon, France, and he's spent his entire career looking at the way different drugs damage the lungs. And he says normally in a hospital, drugs like this are given at low doses and very slowly because... Doctors and nurses, they know there are accidents linked to too quick an injection. But when it comes to lethal injection, the dose is given quickly and it's massive. For example, Robert Van Hook was given 500 milligrams of midazolam.

Compare that to the one or two milligrams you'd get in a hospital. And when that happens, you get a huge concentrated ball of drugs coursing through your bloodstream. It's called a front. Look at the weather. It's sunny. And then what meteorologists call a front. And the rain comes. And that front goes to the heart and then straight to the lungs. OK, so what happens then? Well, the physiology here is complex, but to simplify, the architecture of the lungs is extremely delicate, and it gets damaged by that massive front of drugs. So fluids flood into spaces that are normally dry, and these are spaces that need to be dry in order for you to breathe. So if you were conscious at the time, it would be a feeling of drowning, suffocation, panic, imminent doom.

This is Jeffrey Sippel. He's a pulmonologist at the University of Colorado. He confirmed what the doctors in Atlanta told us. We would not be seeing pulmonary edema if inmates were simply nodding off to sleep. Is pulmonary edema expected with the process of dying? And it's not. This is not how anyone would imagine that lethal injection would unfold. And two final points here. First, it's not just midazolam. The other drugs states use are also causing pulmonary edema. And second, since these drugs are given at the start, the lungs are filling with fluid near the beginning of the execution, and that will

continue until the inmate dies. Sometimes that's three minutes. In Robert Van Hook's case, it was 15 minutes. One execution a few years ago lasted nearly two hours. Wow. Okay, so if that is why pulmonary edema is occurring in many executions, the next question we wanted to ask was, how much can inmates feel the suffocating effects of their lungs filling up with fluid? Noah's going to stay with me for this one. Yeah, this is a big question that courtrooms around the country are debating right now. And states argue that inmates are fully anesthetized.

But doctors are testifying that that first drug isn't reliable, especially when we're talking about midazolam. David Lubarsky is one of the leading anesthesiologists in the country, and he runs UC Davis Health. The ability of the drug midazolam to produce an anesthetic state is reliably zero. We should note that he has testified in death penalty cases on behalf of inmates. He says midazolam can make you sleep, but it does not block pain, meaning inmates can still be jolted awake by the pain of pulmonary edema, hence the many inmates that gasp for air in the execution chamber. It is not a general anesthetic, and its use as a sole anesthetic agent in the lethal injection protocol would amount to malpractice if it were a medical application. Now, some states do use a general anesthetic called pentobarbital, but there are problems with that drug too.

In a 2005 study, Lubarsky and some other doctors looked at the autopsies of inmates executed with this kind of drug. Nearly all of them showed blood levels of the drug that were lower than what's required for surgery because that drug is short-acting and even a large dose wears off quickly. And in the autopsies we obtained, we are seeing similarly low levels. We know for a fact that many inmates were sensate during their execution based on the level of drugs that are in their body. Sensate, meaning they could feel everything. Now, there are some doctors who do push back on Lubarsky's 2005 study. They say the amount of a drug in your blood can change drastically after death, so the levels can't be trusted.

Okay, so to recap, inmates are supposed to get a drug that keeps them from feeling pain. But one drug that some states use is not an anesthetic at all, and the effectiveness of another drug is debated. Which brings us back to the question we asked at the beginning. Has lethal injection lived up to its promise as a more peaceful, more humane method of execution than what came before it? It doesn't actually do what the state claims. This is Joel Zivit again, the doctor in Atlanta who had first found evidence of pulmonary edema in inmate autopsies. And to him, lethal injection mimics the practice of medicine. But he says it's all just theater.

This is a powerful imitation because it uses the terminology, it uses the chemicals, and so people believe that the safety that medicine provides is now being transferred into the execution chamber. It is not. All right. So, Noah, where does this leave us now in this whole legal battle over lethal injection and pulmonary edema? Well, lawyers in multiple states are still using this autopsy evidence to try to get their clients' executions stayed. And this summer, the Supreme Court did see this evidence when it was deciding whether to let federal executions resume again. They didn't issue a specific ruling on whether the pain of pulmonary edema rises to cruel and unusual punishment, but they did let the executions proceed, meaning they weren't convinced enough to stop them. So right now, it's still constitutional to carry out an execution, even if that inmate's lungs fill with fluid as they die.

And lethal injection right now is by far the most common method of execution in the U.S. Right, exactly. Thank you, Noah. Thanks, Elsa. You can find a link to our entire investigation in the show notes. It's Consider This from NPR. I'm Elsa Chang.