Nevada wants to execute an inmate with fentanyl. Should doctors help?

VICE News Tonight on HBO will air an exclusive interview with inmate Scott Dozier on Tuesday at 7:30 p.m.

When Nevada officials strap convicted murderer Scott Dozier to the execution gurney on Wednesday evening, the lethal drugs they’ll pump through his veins will have been vetted by at least two people tasked with doing no harm.

As states confront a nationwide shortage of lethal injection drugs, driven by drugmakers’ reluctance to be associated with capital punishment, they’ve increasingly scrambled to figure out how to execute people without violating the Constitution’s ban on “cruel and unusual punishments.” That’s led them to resort to untested drug protocols. Like in Nevada: On Wednesday, the state will try a brand-new combination of the sedative midazolam, the synthetic opioid fentanyl, and the paralytic drug cisatracurium.

Two physicians (an anesthesiologist and an OB-GYN) who’ve served as Nevada’s chief medical officers were “consulted” about the state’s protocol. But as states try out new lethal injection drugs, each untested protocol raises the issue of whether doctors — bound by the tradition of the Hippocratic Oath — should carry out lethal injections or even offer advice to death penalty states at all.

The debate is far from settled, even among people who oppose lethal injection or capital punishment.

“As states turn to more untested methods of execution and unreliable dangerous drugs that have never been used in this way before, it heightens the need for medical professionals, who know what they’re doing, to be involved,” argued Ty Alper, associate director of the University of California Berkeley Law Death Penalty Clinic. “But I don’t know if that’s how the states view it, because the states — the jurisdictions that are using these risky, untested drugs — don’t acknowledge that there’s anything risky about it.”

Read: What you need to know about Nevada's plan to execute an inmate with fentanyl

Lethal injection was initially adopted in the United States in 1977 because it appeared modern and “medical,” especially when compared to often-gory methods like the firing squad or electric chair, according to University of California Berkeley Law professor Franklin Zimring.

“The notion was that we needed a new, improved, non-brutal sort of medical method of injection that wouldn’t remind people of the bad old days,” Zimring told VICE News last year.

But professional medical groups wanted no part of it. As early as 1980, the American Medical Association released a report condemning doctors who participated in executions. Now, nearly every major professional organization for physicians bars its members from participating in executions.

“Physicians have no place as an instrument in the state in killing people,” said David Lubarsky, an anesthesiologist and head of the University of California Davis Health, which includes the university’s School of Medicine and School of Nursing. “The inmates are not asking to be killed. It’s a very hard line and it’s absolutely black and white. And I say to physicians who want to participate in that, ‘That’s fine. Take a gun, shoot a person in the head. But don’t pretend that this is a medical procedure.’”

Read: Death penalty states are looking for new ways to execute people

Joel Zivot, an associate professor of anesthesiology and surgery at Emory University, believes any doctor who participates in an execution should lose their license. “We don’t execute people as a form of treatment,” he said. “The sentence of death is not an illness.”

Such guidelines, however, remain largely toothless. No medical association or state medical board has disciplined a doctor for participating in an execution, Alper said. Alper is opposed to the death penalty, but as a lawyer who defends death row inmates, he supports doctors’ involvement in executions.

“While I would never want any client to be anywhere close to an execution chamber, I also don’t want any client to be tortured to death,” he explained. “If having qualified people conduct an execution is going to reduce the chances of torture, compared to having completely unqualified people conducting the execution, then I think most people in that situation would want the qualified personnel.”

Doctors do contribute to executions. Executioners’ identities are generally kept secret, but a 2007 study of the 38 death penalty states found that at least 20 states mentioned that doctors may be present at a lethal injection. At least 16 also required that a physician either pronounce or certify an inmate’s death. (It’s unclear if those protocols have since changed thanks to the burgeoning popularity of secrecy laws, which allow states to legally withhold information about executions, making it even harder to know who did what in each execution.)

Read: Some of the most important details of Arkansas' execution spree will remain secret

A 2001 study of 1,000 doctors also found that 41 percent would perform at least one execution step disavowed by the American Medical Association, such as ordering the lethal dosage of drugs or administering them. A quarter of doctors were willing to perform five or more actions.

In fact, a board-certified anesthesiologist devised Nevada’s original execution protocol. John DiMuro, the state’s former chief medical examiner, told the Washington Post that he designed the protocol in minutes.

“I was just following the law,” said DiMuro, who left the job for unrelated reasons last year. “I owed it to the citizens of Nevada to follow the statute, and I did everything that was required of me.”

DiMuro declined to comment to VICE News for this story.

Thanks to a drawn-out court battle, however, a drug DiMuro initially wanted to use expired, and his execution plan was revised. The state’s new chief medical officer — who completed an OB-GYN residency but has also trained in epidemiology, according to his government biography — was once again “consulted” about the protocol, which will now include midazolam, a controversial sedative that was deployed in several botched executions.

States’ willingness to use untested or unreliable drugs is perhaps what most frustrates Lubarsky and Zivot, both of whom say lethal injections fail to follow basic principles of ethical science. No doctor, they say, should be found anywhere near a lethal injection chamber.

“The FDA would never allow that on an animal,” Lubarsky said. “They’d demand a bunch of tests and controlled studies, quality and process improvement, stopping things when they apparently didn’t work.”

Cover image: This Nov. 10, 2016, file photo, released by the Nevada Department of Corrections, shows the execution chamber at Ely State Prison in Ely, Nevada. The state plans to carry out its first execution in 12 years using a never-before-tried combination of drugs on July 11, 2018. (Nevada Department of Corrections via AP, File)