Why Fentanyl Doesn't Get More Use in Executions
The same factors that make it deadly on the street make it unreliable for the death chamber.
America’s journalists have focused increased attention to twin controlled-substance-related crises: the secret yet potentially staggering number of torturous executions by lethal injection, and a putative superdrug that can kill just by touching it. Notwithstanding the hysteria accompanying the fentanyl crisis, the facts speak for themselves: ever-increasing death and misery without regard for any demographic. Fentanyl’s near-mythic power (800 times that of heroin, 14 times that of morphine) has made a nightmare of our already problematic opioid epidemic.
When American news consumers well-versed in fentanyl coverage come across botched execution data, they ask the obvious question: why not use the drug so deadly people are killing themselves with it accidentally, and so readily available that those people include our poorest?
The comparison makes sense but misses the core of the controversy: the same properties that make fentanyl so deadly on the street also make it a poor fit for the execution chamber.
There Has Been to Date One Fentanyl Execution
Nebraska’s protocol utilizes the only four-drug cocktail in American history, with diazepam and fentanyl as sedatives and cisatracurium as the paralytic (as in conventional three-drug protocols, potassium chloride performs the heart-stopping function). While Nebraska’s official protocol doesn’t specify a drug cocktail—an end-around to avoid drug availability issues—it requires that “the first or only substance injected must be capable of rendering the convicted person unconscious;” since benzodiazepines like diazepam don’t kill pain, fentanyl was likely added to avoid the burning sensation counteracting unconsciousness.1 At any rate, neither is considered an induction agent (in anesthesia terms, the lead knockout drug).
Nebraska has used this cocktail only once, in the 2018 execution of Carey Dean Moore. Witness details are ambiguous: one reported no signs of anything digressing from previous executions, but noted the execution was inordinately long and that prison officials shielded Moore’s body from view after the potassium chloride was administered. Details like Moore’s face “turning red, then purple“ could be a sign of a botched execution or what you’d expect a dying person to look like.
Nebraska’s relatively recent reintroduction of capital punishment, along with its complex sentencing procedure, limits further case studies. And while Nevada’s protocol includes fentanyl, they haven't carried out an execution with it yet.2
Fentanyl Deaths Are Unpredictable and Slow
When states first began exploring alternatives to sodium thiopental, the original lethal injection sedative, anesthesiologist and protocol consultant Mark Dershwitz described their frame of mind to Human Rights Watch:
The pharmacological effect of potassium chloride kills an inmate, and it happens quickly. If one uses just a large does of barbiturate, circulation will stop, the inmate will die, but it won't happen in two minutes. Electrical activity in the heart may persist for a very long time, in healthy people almost certainly for more than a half an hour. Everyone involved will have to wait a very long time for the heart to stop…It's not about the prisoner. It's about public policy. It's about the audience and prison personnel who have to carry out the execution. It would be hard for everybody to have to sit and wait for the EKG activity to cease so they can declare the prisoner dead.
According to Human Rights Watch, “no state corrections official whom he has told about the increased length of time pentobarbital may take to kill a condemned inmate has pursued using it instead of potassium chloride.“3 While fentanyl is an opioid, not a barbiturate, the effects put states in a similar position: peak respiratory depression happens in hours, not minutes.
Factors like weight and opioid tolerance also heavily attenuate fentanyl’s effects. Opioids kill on the street because people in relapse or transitioning from another opioid miscalculate their tolerance or the fatal dose’s potency; this unpredictability carries over to its use in intentional killings.
As it turns out, anesthesia is hard.
Using Fentanyl for Executions Might Be Too Hypocritical to Ignore
The whole reason we’re talking about drugs is that legitimate manufacturers want nothing to do with executions. States have been scrambling ever since, with solutions from petty cash deals with foreign distributors doubling as driving schools to getting their “articles“ (not drugs) from questionably licensed, lightly regulated mom-and-pop drug compounders. Fentanyl, famously easy to manufacture, would likely be a simpler procurement than any of the drugs more frequently used.
Secret drug purchases are one thing, though, when you’re buying something named midazolam or pentobarbital or hydromorphone; it’s something else when it’s a compound you’ve made so infamous patients will tough out broken legs to avoid it. When half of your law enforcement apparatus exists to lock people up for circumventing drug controls in an effort not to vomit themselves to death, it’s a bad look to circumvent those same controls for the sole purpose of killing people.
It’s apparently too bright a line for some states to cross. Although Nevada would use fentanyl in future executions, a legislative report noted that “Nevada would be modeling problematic behavior—actively seeking to undermine the very type of controls necessary to fight the epidemic. This two-faced approach would undercut Nevada’s laudable success in combatting the opioid crisis.“
The Problem with Lethal Injection Usually Isn’t the Drugs
Whatever drugs you use, they have to get into the bloodstream, and states run into problems with IV insertion more than they do with drug effectiveness. Alabama has run into so many problems with IVs, they’ve taken to starting them in secret so witnesses can’t see what’s going on. The infamous Clayton Lockett execution in Oklahoma saw an unqualified paramedic attempt a central line placement without the necessary equipment, resulting in drugs pooling impotently in the surrounding tissue after the line failed. More than once, states haven’t even managed to get an execution off the ground due to failures in securing an IV altogether.
States Don’t Really Care about Humane Executions, Anyway
The cocktail that failed with Clayton Lockett, by the way? Approved by the Supreme Court, even after a successful administration still led Charles Frederick Warner to declare “my whole body is burning.” In Glossip v. Gross and later Bucklew v. Precythe, SCOTUS placed the burden of proof on death row prisoners to prove that the state’s execution method “superadds“ pain to the process, and additionally requires them to prove that an execution method the prisoner suggests would be less painful. And while states have proved responsive to drug shortages, the mere fact that what they’re doing stands a significant chance of torturing its subjects doesn’t really sway them.
There are a lot of reasons states shouldn’t use fentanyl in executions, but the most impactful reason they don’t is that there’s no one to make them change.
The relationship between pain and sedation level, however, is fairly tenuous.
Ohio, however, has used an opioid (hydromorphone), notably in the botched execution of Dennis McGuire.
The then-positions of Dershwitz and Human Rights Watch were that pentobarbital-based executions would be more humane; we now know that the difference is far from satisfactory.