The Supremes Wax Hypothetical On Executions, May End Up Moot

Yesterday the Supreme Court heard arguments in Glossip v. Gross, a case brought by condemned men in Oklahoma objecting to its method of capital punishment.  The argument in this case hinges on the state’s use of midazolam as the sedative in the three-drug cocktail of anesthestic, paralytic and a drug to stop the heart.  Death penalty opponents argue that the drug does not adequately sedate the condemned inmate, allowing them to suffer sufficient pain from the subsequent drugs to qualify as cruel and unusual punishment.

While it is rarely a guarantee that oral arguments indicate exactly how the justices will rule, it can be suggestive.  Reports from the Court indicate that the justices questions focused primarily on two threads.  The liberal justices were concerned about the effects of midazolam, while four of the conservative justices focused on what they consider a judicial end around.  As I’ve tracked on this blog, manufacturers and others have put drugs used in executions out of reach of states, forcing them to choose alternative drugs, and in some cases expand their execution options.

The justices’ questions about these tactics suggest they are upset at their decisions (about the Constitutionality of the death penalty) being subverted by what could be seen as technical, rather than political, means.  While I’d argue that the campaign to get execution drugs pulled is definitely political, I can see where the justices that support the death penalty see this effort as a turf battle.

Again, the oral arguments are more of a guide than a predictor of the court’s vote (much less the specifics of its opinions).  But it would seem that this case is unlikely to change the status of the death penalty.  And while some justices object to the movement to make certain drugs inaccessible for executions, there is little they can do.  In March an Illinois manufacturer of midazolam requested the State of Oklahoma return its supply of the drug (for a refund, of course).  The company, Akron Pharmaceuticals, will also take steps to make sure its supplies of midazolam and hydromorphone (a narcotic pain reliever some states have expressed interest in using) cannot be used for executions.  Similar letters have been sent to other states.  Should other manufacturers follow suit, it may not matter what the Court says when it rules in this case.

Oklahoma Acts To Innovate – In Executions

On Friday the Governor of Oklahoma signed into law a bill that would establish nitrogen-induced hypoxia as a means of executing prisoners, should circumstances prevent lethal injection from being used. The bill does not get into specifics, it simply modifies the existing law on the order of preference for methods of execution (Oklahoma now has four).  The law would take effect November 1, 2015.  Oklahoma does not currently have any executions scheduled, and the executions of three men are currently stayed pending a Supreme Court case.

While gas chambers have been used for executions in the United States (inmates in three states still have the option of death by gas), the active gas used to suffocate the condemned was never nitrogen.  The general principle is the same, a gas is pumped into a sealed chamber, and the condemned dies after breathing it.  Hydrogen cyanide was the most common gas used in the United States for executions, and it is considered a chemical warfare agent.  Using nitrogen for execution could be very different as it is not toxic, and could cause much less pain and suffering for the condemned.  It would likely be easier to use than hydrogen cyanide.

But it is an untested method.  Oklahoma has no experience with a gas chamber, and with its challenges in administering lethal injections, I can understand why some would doubt the state’s ability to effectively innovate in executions.  However, should the Supreme Court rule against the state’s lethal injection protocols later this year, Oklahoma may well set an example for other states seeking ways around the roadblocks to lethal injection.

Sidebar – While the Supreme Court case on Oklahoma’s methods may make this moot, the federal death penalty may force a more definitive legal stance on lethal injection.  The federal government’s preferred method of execution defers to the state in which the crime took place.  Should there be no death penalty in that state, the judge must choose a state with a death penalty to carry out the execution.  While this typically means lethal injection, it is plausible that the recent turmoil in the states may affect how the federal government conducts its executions.  However, no federal execution has been carried out since 2003, and none are scheduled at the time of this writing.

Second Lawsuit Filed Over Guatemalan STD Experiments

Following the disclosure in 2010 that several Guatemalans were exposed to sexually transmitted diseases without their consent, several parties initiated a class action lawsuit against the government.  That lawsuit was eventually dismissed over the inability to sue the U.S. over actions conducted in another country.  For details on the experiments, consult the report from The Presidential Commission for the Study of Bioethical Issues.

The plaintiffs have not given up, yesterday they filed suit against Johns Hopkins University for its role in the exposures.  Several Johns Hopkins researchers held positions in panels that reviewed federal funding for the studies at issue in the suit.  Other defendants include the Rockefeller Foundation and Bristol-Meyers Squibb.

The suit is filed against these defendants apparently due to the affiliation several officials involved in the exposures had with the named institutions (or in the case of Bristol-Meyers Squibb, its predecessor companies).  Both Johns Hopkins and The Rockefeller Foundation have denied that their institutions were involved in the experiments.  Bristol-Meyers Squibb officials have declined to comment as of this writing.  The suit alleges that the experiments were used as clinical trials for the predecessor companies’ products.

With the dismissal of the previous lawsuit, it is not clear that the current matter will be any more successful.  Arguably the plaintiff’s case here will be harder, as holding an institutional affiliation will not likely be sufficient to demonstrate the institution was responsible for the conduct of particular individuals working for other organizations.

Gray Matters Volume 2 Seeks To Counter Hype With Discussion

Today the Presidential Commission for the Study of Bioethical Issues released the second volume of its Gray Matters report, the ninth report by this commission.  The report was requested by the President following the announcement of the BRAIN Initiative.  He requested that the Commission identify a set of core ethical standards to influence neuroscience research and to address some of the debates emerging from applications of that research.

Volume One, released in May 2014, focused on how to fully integrate ethics into neuroscience research throughout the research cycle.  Volume Two concerns ethics in applications of neuroscience research, with an emphasis on three topics that have attracted some level of debate: cognitive enhancement, the capacity of a being to consent (to research conducted on them), and neuroscience in the law.  Through these cases the Commission wanted to tease out relevant ethical considerations and related tensions brought out by the potential impacts of these technologies.

There are fourteen main recommendations in the report:

Prioritize Existing Strategies to Maintain and Improve Neural Health

Continue to examine and develop existing tools and techniques for brain health

Prioritize Treatment of Neurological Disorders
As with the previous recommendation, it would be valuable to focus on existing means of addressing neurological disorders and working to improve them.

Study Novel Neural Modifiers to Augment or Enhance Neural Function
Existing research in this area is limited and inconclusive.
Ensure Equitable Access to Novel Neural Modifiers to Augment or Enhance Neural Function

Access to cognitive enhancements will need to be handled carefully to avoid exacerbating societal inequities (think the stratified societies of the film Elysium or the Star Trek episode “The Cloud Minders“).

Create Guidance About the Use of Neural Modifiers
Professional societies and expert groups need to develop guidance for health care providers that receive requests for prescriptions for cognitive enhancements (something like an off-label use of attention deficit drugs, beta blockers or other medicines to boost cognition rather than address perceived deficits).
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So, About Those Scientists On Trial In Italy…

Important disclaimers – I am not a lawyer, either in this country or Italy.  I also don’t speak the language, so I am relying on secondary sources.

ScienceInsider has reported on the decision to acquit six of the seven people convicted of manslaughter in connection with the 2009 L’Aquila earthquake.  The people had been convicted due to the poor way they communicated the risk of possible earthquakes leading up to the 6.2 quake that killed 309 people.

It is not, and never was, about the prediction of earthquakes or a misunderstanding of the underlying science.  But that was the easy message, and the one that got through, at least outside of Italy.  I could have been more effective in communicating that in the many posts I made on the topic, and I apologize for that.

Back to the latest developments.  The appellate court which acquitted six of the seven defendants (all of the scientists were acquitted, while the public official remains sentenced to 6 years) ruled that only the public official could be faulted for the reassurances that caused some people to remain indoors.  The scientists, according to the appellate court, should not have been judged by any regulatory responsibilities they had, but by how well they complied with the accepted science of the time.  And because, according to the court, the notion that a cluster of earthquakes can indicate a larger one was not a commonly accepted scientific theory until after the L’Aquila quake.

That last statement seems like it could be subject to debate for years to come.  Perhaps that debate might play out – at least in part – in the next level of appeals.  The chief prosecutor can appeal this latest decision to the top Italian appeals court.  So this may still not be over.

So There Will Be A Lethal Injection Case After All

On Wednesday the Supreme Court agreed to delay the executions of three Oklahoma inmates (H/T SCOTUSBlog) who have a case before the Court concerning the method of those executions.  The order specified executions by midazolam, which is the drug at issue in Oklahoma.  While the case is scheduled for consideration by the Court in April, the three remaining condemned men were scheduled to die well before then.  Had the Court not acted when it did, there would now be two petitioners.

It is possible that Oklahoma could work around the order by setting up a new lethal execution protocol that does not use midazolam and have that protocol approved by the Court.  There has been even greater secrecy around lethal injection exections since drugs have become more scarce, and Oklahoma could be keeping things quiet if they were working on a new protocol.  Per SCOTUSBlog the state was seeking an order that explicitly permitted the delay to be conditional on using a different protocol.

It is worth noting that on Thursday the Supreme Court denied a request of a stay of execution from Texas.  Midazolam is not used in Texas, which currently opts for a massive does of pentobarbital to conduct its executions.  Should the Supreme Court decide against Oklahoma’s current execution drug protocol, I could easily see it simply eliminating midazolam or adjusting the dosage rather than barring the practice of lethal injection.

One Thread Of Post Myriad Activity Seems To Be Ending

Since the 2013 decision in the Myriad case, which invalidated some patent claims on isolated sequences of two genes relevant in some cases of breast cancer, there have been two major actions taking place.  Following the decision the Patent and Trademark Office (USPTO) has been working on guidance for potential patent applicants working with products of nature.  The latest guidance memo was released in December (H/T ScienceInsider), and the USPTO is taking comments until March 15.  There has been a back and forth with the biomedical research community, which has argued that the initial guidance (from March 2014) went further than the Supreme Court intended.  The USPTO has made changes in response.

The other post-Supreme Court thrust has involved lawsuits by Myriad Genetics against companies developing their own genetic tests for the breast cancer genes where Myriad held patent claims.  The company was protecting its market share and investment through the lawsuits and the settlement terms it has been able to reach..  ScienceInsider is reporting that many of the remaining cases have settled and The New York Times has noted that Myriad is working to address the remaining cases.