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Autopsies Show Inmates' Lungs Filling With Fluid As They're Executed

AILSA CHANG, HOST:

In a high-security prison in Terre Haute, Ind., two federal inmates await their executions - one tomorrow, the next on Thursday. As they wait, their lawyers are asking the court to intervene because they say the drugs used to kill the inmates will cause their lungs to fill with fluid as they die and that in their final moments, they could experience the sensation of drowning.

MARY LOUISE KELLY, HOST:

Those fears aren't unfounded. And just a quick warning for listeners - what you're about to hear may be upsetting. In the spring of 2017, an Arkansas inmate gasped and choked as he was executed.

CHANG: The following year, in Ohio, an inmate heaved against his restraints, struggling for air.

KELLY: And a few months after that, in Tennessee, once again, an inmate gasping for air and convulsing. All of these inmates were later found to have lungs filled with fluid.

CHANG: Now, we can't ask them how painful their executions were, whether they amounted to cruel and unusual punishment. But what we can do is peer inside their bodies. For the past two years, a team at ALL THINGS CONSIDERED has been investigating the autopsies of inmates killed by lethal injection. We've obtained the largest collection of these autopsies ever assembled in the U.S. This collection spans decades of executions across multiple states, and what our findings reveal is evidence of a death far less peaceful than what states promised when they adopted lethal injection decades ago. We begin this story in Atlanta, where I went in 2018 with producer Noah Caldwell to meet a doctor who made a startling discovery.

Hi, Joel.

JOEL ZIVOT: Hi. Nice to meet you.

CHANG: Joel Zivot works 80-hour weeks at Emory University Hospital. He's an anesthesiologist, checking in on patients in the ICU.

ZIVOT: So his temperature is kind of low-grade. And did he get the CIP rep (ph)? Did he need to get a dose of that?

CHANG: A few years ago, federal defenders in Georgia hired Zivot to review a few autopsies of inmates executed by lethal injection.

ZIVOT: What I was asked to address was the blood levels of certain kinds of medications.

CHANG: But something else caught his eye.

ZIVOT: I recognized that something was amiss.

CHANG: What did you see in the autopsies?

ZIVOT: So I began to see a pattern of organ failure. 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.

CHANG: A painful death. In autopsy after autopsy, what Zivot saw were unusually heavy lungs, lungs swollen with fluid, which surprised him. It's not a common finding in autopsies. It's something you'd see in cases of, say, congestive heart failure or sepsis, neither of which were happening here. He wanted a second opinion, so he contacted a colleague at Emory, a pathologist named Mark Edgar.

ZIVOT: I said, I want you to look at these documents and just tell me what you think you see here because I think I'm seeing something here that is a surprise to me.

CHANG: Now, Zivot deliberately did not tell Edgar what had surprised him in those autopsies. But Edgar - he zeroed in on the exact same thing that Zivot did - lungs filled with fluid. He noticed...

MARK EDGAR: Frothy fluid in the nose...

CHANG: The same word kept popping up.

EDGAR: ...Frothy material in the main bronchi...

CHANG: The word frothy.

EDGAR: ...Frothy fluid in the upper and lower airways...

CHANG: What they were seeing was a severe form of a condition called pulmonary edema. The presence of froth was a troubling clue because it meant that inmates were still alive and trying to breathe as their lungs were filling with fluid. Zivot and Edgar got a few dozen more autopsies from other states just to see - was this a fluke? And similar words like frothy and fluid kept coming up to describe the lungs.

ZIVOT: 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 experience of a dying inmate?

CHANG: Zivot brought these findings to federal court in multiple states. It's evidence that is now at the forefront of legal challenges to lethal injection. For the past two years, a team at NPR has undertaken its own investigation. We expanded the scope of the data significantly. We obtained more than 300 inmate autopsies through Freedom of Information Act requests. They cover executions in nine states, dating from 1990 to 2019.

And what these autopsies show is that when inmates' lungs were examined after their executions, pulmonary edema occurred 84% of the time. That was consistent across states. Medical experts say these findings are troubling because they mean it is very likely these inmates experience the sensation of drowning or suffocation before they die and that many inmates were not being properly anesthetized.

We're going to talk about all of this with producer Noah Caldwell. He's been poring over these autopsies for the last year and a half. And he's with me now.

Hey, Noah.

NOAH CALDWELL, BYLINE: Hi, Ailsa.

CHANG: All right. You have been investigating the science behind these findings of pulmonary edema, or fluid in the lungs.

CALDWELL: Right, and what it all means for the experience of the inmate.

CHANG: OK. So fill us in on what you found.

CALDWELL: OK. 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.

CHANG: So his lungs were filling up with fluid.

CALDWELL: 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.

CHANG: Midazolam.

CALDWELL: 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.

PHILIPPE CAMUS: Yeah, it's very interesting. The lung is special.

CALDWELL: 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...

CAMUS: Doctors and nurses - they know there are accidents linked to too quick an injection.

CALDWELL: 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.

CAMUS: Look at the weather. It's sunny. And then what meteorologists call the front and the rain comes.

CALDWELL: And that front goes to the heart and then straight to the lungs.

CHANG: OK. So what happens then?

CALDWELL: 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 are conscious at the time...

JEFFREY SIPPEL: It would be a feeling of drowning, suffocation, panic, imminent doom.

CALDWELL: 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.

SIPPEL: 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.

CALDWELL: 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.

CHANG: Wow. OK. 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.

CALDWELL: Yeah. This is a big question that courtrooms around the country are debating right now. And states argue that inmates are fully anesthetized.

CHANG: 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.

DAVID LUBARSKY: The ability of the drug midazolam to produce an anesthetic state is reliably zero.

CHANG: 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.

LUBARSKY: 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.

CALDWELL: 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.

LUBARSKY: We know for a fact that many inmates were sensate during their execution based on the level of drugs that are in their body.

CALDWELL: 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.

CHANG: OK. 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.

CALDWELL: 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?

ZIVOT: It doesn't actually do what the state claims.

CHANG: This is Joel Zivot 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.

ZIVOT: 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.

CHANG: Tomorrow, we'll continue our investigation and see how all of this is playing out in the courts - courts that are struggling to figure out the difference between just punishment and cruel and unusual punishment. We'll meet people on either side of this divide, including a man who has waited 36 years to see the execution of his wife's murderer.

UNIDENTIFIED PERSON: It is only the bleeding hearts and the half-wits that are involved in this discussion. Cruel and unusual punishment is laying out there in the cemetery.

CHANG: I'm Ailsa Chang.

CALDWELL: And I'm Noah Caldwell.

(SOUNDBITE OF OLAFUR ARNALDS' "YPSILON") Transcript provided by NPR, Copyright NPR.

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