Early next year, the Supreme Court will tackle the question of whether death by lethal injection violates the constitutional prohibition against cruel and unusual punishment. The high court agreed to hear the appeal of two Kentucky inmates suing the state over its three-drug lethal injection procedure, saying it causes unnecessary pain and suffering. Unwillingly caught up in the debate is the AVMA, whose Guidelines on Euthanasia are cited by lethal injection opponents arguing that even veterinarians won't subject their animal patients to the same deadly cocktail used on condemned criminals.
No one at the AVMA knows which lawyer or journalist is responsible for bringing the Association into the debate, a debate in which the AVMA does not believe it should be involved. But what is known is that shortly after the euthanasia guidelines were published, originally as the 2000 Report on the AVMA Panel on Euthanasia, lethal injection opponents seized on the document to bolster their claim that the method of executing humans results in intense suffering.
In humans, lethal injection is performed by sequentially administering sodium thiopental to cause unconsciousness, pancuronium bromide to cause paralysis, and potassium chloride to cause death. The argument is that if the inmate is not properly sedated by the first drug, the prisoner will experience paralysis, suffocation, and excruciating pain when the other drugs are injected.
The AVMA and its guidelines have been cited in news stories, a study in The Lancet medical journal, and legal petitions challenging lethal injection protocols used by most states that impose capital punishment. In a 2006 hearing involving the pending execution of a Florida inmate, Supreme Court Justice John Paul Stevens told a lawyer arguing for the state, "Your procedure would be prohibited if applied to cats and dogs." Lawyers for the two Kentucky death row inmates, Ralph Baze and Thomas Bowling, refer to veterinary euthanasia in their case against the state. Prosecutors in many states have stopped seeking execution dates while waiting for the Supreme Court's decision.
Much of the controversy originated with a single statement in the euthanasia guidelines: "A combination of pentobarbital with a neuromuscular blocking agent is not an acceptable euthanasia agent." At first glance, it would appear that the AVMA guidelines are, indeed, at odds with accepted lethal injection practices.
The AVMA says its report is being misinterpreted, however. In a 2006 supplemental statement to the Guidelines on Euthanasia, the AVMA clarified the portion of the report in question, saying it was intended as a recommendation against mixing a barbiturate and neuromuscular blocking agent in the same syringe; when that happens there is the possibility that the paralyzing agent may take effect before the barbiturate and the animal might become paralyzed while still conscious.
The supplemental statement goes on to explain that the guidelines are in no way intended to be used for human lethal injection. Furthermore, the application of a barbiturate, paralyzing agent, and potassium chloride delivered via separate syringes or stages is no where cited in the guidelines. And finally, the guidelines never mention pancuronium bromide. "The guidelines were developed to provide guidance for veterinarians when euthanizing animals. They are not intended to serve as guidelines for the euthanasia of human beings," said Dr. Gail C. Golab, director of the AVMA Animal Welfare Division
In retrospect, the Guidelines on Euthanasia could have been worded more clearly, Dr. Golab admits. "But it was never even considered that the guidelines might be inappropriately used to address lethal injection in people," Dr. Golab explained. "It's true that the statement doesn't specifically reference the syringe—it talks about combinations—so I can see how it can be reinterpreted. The next time the AVMA panel issues a report, it's clear we will need to carefully consider how statements related to the use of paralyzing agents are phrased."
The AVMA has written editorials and spoken to reporters and attorneys in an attempt to keep the guidelines from being misapplied. Dr. Golab recently filed an affidavit at the request of the Alabama assistant attorney general in a death sentence appeal. In the past, the AVMA had declined offers from both sides of the issue to weigh in. But the decision was made to do so in this instance in the hope of making the Association's position part of the legal record.
In addition to restating the Association's objections to so using its euthanasia guidelines, Dr. Golab stated in the affidavit that the document was intended as an aid to veterinarians in various settings where animals are to be euthanized. "This report cannot and should not be extrapolated to apply to lethal injection procedures for people," she wrote.
Such an outcome appears unlikely, however. Since next to no clinical research on human euthanasia exists, lawyers fighting to overturn death sentences went looking for any comparable data and guidelines they could find. "It was an obvious question to ask 'What happens when veterinarians euthanize animals?'" explained Elisabeth Semel, director of the Berkeley Law Death Penalty Clinic. Looking to what veterinarians do was enormously informative, namely, when it comes to providing animals with a painless death and the skills necessary to ensure such an outcome, Semel said.
One of the chief complaints about lethal injection is that it is presided over by unskilled individuals unable to assess whether an inmate is fully unconscious before the two final drugs are administered. The AVMA euthanasia guidelines state that when potassium chloride is administered to euthanize an animal, the animal is to first be fully anesthetized, and personnel performing the euthanasia must be trained in anesthetic techniques and able to determine whether the animal is fully unconscious.
"We require a level of professionalism in (euthanizing) animals that we do not when causing the death of human beings," Semel said. "Veterinarians require that all reasonable steps be taken to ensure that animals do not suffer. Veterinarians insist on doing this for animals, but we don't insist on doing this for people. That dichotomy is very dramatic and striking."
Semel understands the AVMA's objections to using its Guidelines on Euthanasia for purposes other than they were intended. But she said the procedure is a medical issue and the veterinary profession, whether it likes it or not, is part of the debate. "Looking to those medical professionals who are engaged in these types of procedures—particularly the veterinarians, looking to medical professionals who understand just how complex it is to properly anesthetize and maintain anesthesia … has been very informative and certainly is the kind of expert information the court ought to have in deciding this important question," Semel said.
Despite the AVMA's efforts to be left out of the dispute over lethal injection, individual veterinarians have weighed in against the practice. In March 2006, three veterinarians—two of them board-certified veterinary anesthesiologists—filed a brief on behalf of Clarence E. Hill, who was sentenced by a Florida jury to death by lethal injection. The manner in which the combination of drugs is administered to prisoners according to Florida's lethal injection protocol fails to meet the minimum standards for the humane euthanasia of animals, the veterinarians wrote in their petition. The Supreme Court ultimately denied Hill's appeal, and he was put to death later that year.
In the case the Supreme Court will hear, five veterinarians have filed a petition on behalf of the two inmates sentenced to death in Kentucky. As in the Florida case, they argue that Kentucky's lethal injection protocols fail to measure up to veterinary euthanasia and should be prohibited. The Supreme Court is scheduled to hear oral arguments on that case Jan. 7.