BRIEF OF DRS. KEVIN CONCANNON,DENNIS GEISER, CAROLYN KERR,

GLENN PETTIFER, ANDSHEILAH ROBERTSON AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

No. 07-5439

IN THE

Supreme Court of the United States

_______________________________

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

212298

A((800) 274-3321 • (800) 359-6859

RALPH BAZE, et al.

Petitioners,

v.

JOHN D. REES, et al.

Respondents.

SIMONA G. STRAUSS

Counsel of RecordLUCIA MACDONALD

GEORGE R. MORRIS

ANGELA M. MOORE

SIMPSON THACHER & BARTLETT LLP2550 Hanover StreetPalo Alto, California 94304(650) 251-5000

Counsel for Amici Curiae

i

Cited Authorities

Page

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES . . . . . . . . . iii

INTEREST OF THE AMICI CURIAE . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I. THE PROTOCOL FOR THE USE OFPOTASSIUM CHLORIDE INKENTUCKY EXECUTIONS FAILS TOCOMPLY WITH MINIMUMVETERINARY STANDARDS FORHUMANE EUTHANASIA OFANIMALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. Humane Euthanasia Prohibits theUse of Potassium Chloride in aConscious Patient . . . . . . . . . . . . . . . . . 9

B. A Veterinarian Following Kentucky’sLethal Injection Protocol Would NotBe Able to Ensure That a Patient Wasat a Surgical Plane of Anesthesia . . . 11

C. The Short-Acting Nature of SodiumThiopental Makes It More Difficultto Maintain a Surgical Plane ofAnesthesia Than the Anesthetic Usedin Veterinary Euthanasia . . . . . . . . . . 14

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Cited Authorities

Page

II. THE USE OF PANCURONIUMBROMIDE MASKS CONSCIOUSNESSAND IS CONTRARY TO HUMANEVETERINARY EUTHANASIA. . . . . . . . 16

A. Pancuronium Bromide Causes aConscious Patient to ExperienceSuffocation . . . . . . . . . . . . . . . . . . . . . . . 16

B. Pancuronium Bromide Inhibitsthe Ability to Assess a Patient’sConsciousness . . . . . . . . . . . . . . . . . . . . 17

III. THE PREFERRED METHOD OFHUMANE EUTHANASIA IN ANIMALSIS THE USE OF SODIUMPENTOBARBITAL ALONE. . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Contents

iii

Cited Authorities

PageTABLE OF CITED AUTHORITIES

Federal Cases

Harbison v. Little,No. Civ. 3:06-1206, 2007 WL 2821230(M.D. Tenn. Sept. 19, 2007) . . . . . . . . . . . . . . .9, 16, 19

Morales v. Tilton,465 F. Supp. 2d 972 (N.D. Cal. 2006) . . . . . . . . . 13

State Cases

Baze v. Rees,No. 04-CI-01094, 2005 WL 5797977(Ky. Cir. Ct. July 8, 2005) . . . . . . . . . . . . . . . . .5, 11, 15

Lightbourne v. McCollum,No. SC06-2391, 2007 WL 3196533(Fla. Nov. 1, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . 17

State Statutes

510 Ill. Comp. Stat. 70/2.09 . . . . . . . . . . . . . . . . . . . 18

Ala. Code § 34-29-131 . . . . . . . . . . . . . . . . . . . . . . . . 18

Ala. Admin. Code r. 930-x-1-.36 . . . . . . . . . . . . . . . 18

Alaska Stat. 08.02.050 . . . . . . . . . . . . . . . . . . . . . . . . 18

Ariz. Rev. Stat. Ann. § 11-1021 . . . . . . . . . . . . . . . . 18

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Cited Authorities

Page

Colo. Rev. Stat. § 18-9-201 . . . . . . . . . . . . . . . . . . . . 18

Del. Code Ann. tit. 3, § 8001 . . . . . . . . . . . . . . . . . . 18

Fla. Stat. § 828.058 . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Ga. Code Ann. § 4-11-5.1 . . . . . . . . . . . . . . . . . . . . . 18

Kan. Stat. Ann. 47-1718(a) . . . . . . . . . . . . . . . . . . . . 18

Ky. Admin. Regs. 201 Ch.16:090 § 5(1) . . . . . . .4, 14, 19

Ky. Rev. Stat. § 258.095(12) . . . . . . . . . . . . . . . . . . . 3

La. Rev. Stat. Ann. § 3:2465(C)(1) . . . . . . . . . . . . . 18

Mass. Gen. Laws Ann. ch. 140, § 151A . . . . . . . . . 18

Md. Code Ann., Crim. Law § 10-611(a)(3) . . . . . . 18

Me. Rev. Stat. Ann. tit. 17, § 1044 . . . . . . . . . . . . . 18

Mo. Ann. Stat. § 578.005(7) . . . . . . . . . . . . . . . . . . . 18

N.J. Stat. Ann. § 4:22-19.3 . . . . . . . . . . . . . . . . . . . . 18

N.Y. Agric. & Mkts. Law 374(2-b) . . . . . . . . . . . . . 18

Okla. Stat. tit. 4, § 501(c) . . . . . . . . . . . . . . . . . . . . . 18

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Cited Authorities

Page

S.C. Code Ann. § 47-3-420(A) . . . . . . . . . . . . . . . . . 18

Tenn. Code Ann. § 44-17-303(c) . . . . . . . . . . . . . . . 18

Tex. Health & Safety Code Ann. § 821.052(a) . . . 18

W. Va. Code Ann. § 30-10A-8 . . . . . . . . . . . . . . . . . . 18

Wyo. Stat. Ann. § 33-30-216 . . . . . . . . . . . . . . . . . . . 18

Other Authorities

American Veterinary Medical AssociationGuidelines on Euthanasia (June 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 14, 19

Brief of the Veterinary Amici in Hill v.McDonough, 126 S. Ct. 2096 (2006) . . . . . . . . . 17, 18

Florida Corrections Commission, SupplementalReport - Methods of Execution Used by States(1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1

INTEREST OF THE AMICI CURIAE

Drs. Kevin Concannon, Dennis Geiser, Carolyn Kerr,Glenn Pettifer and Sheilah Robertson (the “VeterinaryAmici”) respectfully submit this brief of amici curiae insupport of Petitioners Ralph Baze and Thomas C.Bowling. Consent of Petitioners’ counsel andRespondents’ counsel has been obtained for the filing ofthis brief.1

The Veterinary Amici are experienced veterinarians,with extensive knowledge regarding veterinaryanesthesia. They regularly face issues regarding thehumane euthanasia of animals. They also have specificexpertise regarding the chemicals used by the State ofKentucky in lethal injections, including the limitationsand effects of these chemicals in euthanizing animals.

Dr. Kevin Concannon is a veterinarian and adiplomate of the American College of VeterinaryAnesthesiologists. During nearly 20 years as a practicingveterinarian, he has taught veterinary anesthesia andserved as a supervisor of clinical anesthesia at both theUniversity of California - Davis and North Carolina StateUniversity College of Veterinary Medicine. He hasworked for the past ten years as an emergency/criticalcare clinician, anesthesia consultant and hospital directorat the Veterinary Specialty Hospital of the Carolinas.

1. Letters of consent are being filed herewith. Counsel fora party did not author this brief in whole or in part. No personor entity other than the amici curiae and their counsel made amonetary contribution to the preparation or submission of thebrief.

2

Dr. Dennis Geiser is a veterinarian and a diplomateof the American Board of Veterinary Practitioners. Heis a professor of veterinary science at the University ofTennessee and the Assistant Dean of OrganizationalDevelopment and Outreach at the College of VeterinaryMedicine at the University of Tennessee. Dr. Geiserteaches equine respiratory disease and large animalanesthesia, conducts clinical work in anesthesiology andpain management, and conducts research in painmanagement, balance of anesthesia in animals and localand regional anesthesia.

Dr. Carolyn Kerr is a veterinarian and a diplomateof the American College of Veterinary Anesthesiologists.She has a D.V.Sc. in Veterinary Anesthesia and a Ph.D.in Physiology. Dr. Kerr is currently an associateprofessor at the Ontario Veterinary College at theUniversity of Guelph. She has practiced veterinarymedicine for 18 years and has lectured in veterinaryanesthesia, pain management and euthanasia for the last7 years to veterinary students and researchers at theUniversity of Guelph.

Dr. Glenn Pettifer is a veterinarian and has a D.V.Sc.in veterinary anesthesiology. He is a diplomate and anexecutive board member of the American College ofVeterinary Anesthesiologists. He currently practicesveterinary anesthesiology at the Veterinary EmergencyClinic in Toronto, Canada. Dr. Pettifer formerly taughtveterinary anesthesiology and pain management atLouisiana State University and was later the Chief ofAnesthesia Service there.

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Dr. Sheilah Robertson is a specialist in veterinaryanesthesiology and pain management. She is a diplomateof the European and American Colleges of VeterinaryAnesthesia and is currently a professor in the section ofanesthesia and pain management at the University ofFlorida’s College of Veterinary Medicine. She haspublished widely on the stress response to anesthesia inhorses and on the alleviation of pain in many species.

Based on their years of experience in the field ofveterinary anesthesia and pain management, theVeterinary Amici respectfully present the Court withinformation concerning the methods by which humaneeuthanasia is achieved in animals, and the difficultiesinvolved in achieving humane euthanasia using thechemicals and procedures called for in Kentucky’s lethalinjection protocol.

SUMMARY OF ARGUMENT

Humane euthanasia

The term euthanasia comes from the Greek words“eu” and “thanatos,” which combined mean “well death”or “dying well.” The primary goal of veterinarians whoeuthanize animals is to achieve death humanely, avoidingneedless pain and suffering of the patient. See Ky. Rev.Stat. § 258.095(12) (“‘[E]uthanasia’ means the act ofputting an animal to death in a humane manner. . . .”).To this end, veterinarians carefully consider thecharacteristics of the drugs that may be administeredfor the purpose of euthanasia, avoiding those that wouldcause unnecessary pain.

4

Euthanasia can be divided into two parts:(1) rendering an animal unconscious, followed by(2) inhibition of brain, heart, or both brain and heartfunction. An unconscious, properly anesthetized animalwill not undergo physical or mental distress during theeuthanasia process. Intravenous injection of ananesthetic drug most reliably and commonly producesthis state of unconsciousness. Injection of increasingamounts of an anesthetic produces changes to a patient’smental state from light sedation, to unconsciousness, toprofound brain depression and death. In clinical practice,veterinary anesthesiologists use the term “surgical planeof anesthesia” to define a particular point in the middleof this progression characterized by unconsciousness,loss of reflex muscle response, and attenuation of thestress responses of the body. Veterinarians take care tokeep their patients in or beyond the surgical plane ofanesthesia during the euthanasia process.

The preferred method for humane euthanasia byveterinarians – and the one required under Kentuckylaw – involves the use of a euthanasia solution thatcontains a single drug, sodium pentobarbital. 201 Ky.Admin. Regs. 16:090 § 5(1). Sodium pentobarbital is along-acting anesthetic that quickly places the patient ina deep, surgical plane of anesthesia when injectedintravenously. An overdose of sodium pentobarbitalcauses the patient to move past a surgical plane ofanesthesia to profound brain depression resulting indeath. Significantly, all this occurs with only transientand minimal pain to the patient associated merely withthe venipuncture itself because the patient isunconscious.

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As explained herein, Kentucky’s current lethalinjection protocol would not meet the minimumstandards for the humane euthanization of animals.

The Kentucky lethal injection protocol

Kentucky’s lethal injection protocol does not call forthe use of sodium pentobarbital. Rather, the bestavailable information about Kentucky’s protocolsuggests that death is achieved by the intravenousinjection of three different drugs. Specifically, the inmatefirst is injected with three grams of sodium thiopental,which is an “ultra short-acting barbiturate” intended toanesthetize – but not kill – the inmate. Baze v. Rees, No.04-CI-01094, 2005 WL 5797977 (Ky. Cir. Ct. July 8, 2005),J.A. 762. Following a saline flush, the inmate is injectedwith fifty milligrams of pancuronium bromide, aneuromuscular blocking agent used to paralyze theinmate’s voluntary muscles. See id. at 763-64. Afteranother saline flush, the inmate is finally administeredtwo hundred and forty milliequivalents of potassiumchloride, which results in an alteration in impulsegeneration in the heart, leading to cessation of cardiacactivity and directly causing death. Id.

Two of the three drugs used in the Kentucky protocol– pancuronium bromide and potassium chloride – causesevere pain and suffering when administered to a patientwho is conscious. For that reason, many states, includingKentucky, do not allow pancuronium bromide to be usedto euthanize animals, and veterinary standards prohibitthe use of potassium chloride unless a patient isunconscious. This unconsciousness must be maintainedthroughout the euthanasia process.

6

Although Kentucky’s protocol provides for an initialinjection of anesthetic in the form of sodium thiopental,there is a danger that this injection is insufficient toachieve or maintain the state of unconsciousness aveterinarian would require before using potassiumchloride to euthanize an animal. Sodium thiopental is anultra short-acting barbiturate whose anesthetic effectswear off quickly. If there is any delay during an executionand no additional dose of sodium thiopental isadministered, there is a risk that the drug’s effects willdiminish, resulting in the inmate being conscious at thetime the other two drugs are administered andexperiencing pain from those drugs. Moreover, evenwithout a delay, the duration of the anesthetic effect ofthe sodium thiopental will be abbreviated if the properdose is not injected. (This is especially true if thepredetermined three-gram dose, which is given to allinmates without any consideration for their weight,proves insufficient.) The likelihood of an inappropriatedose of sodium thiopental is increased when thoseindividuals responsible for the administration of the drugduring an execution are not specifically trained toadminister such anesthetics.2

The risk of inappropriate depth of anesthesia priorto the administration of the pancuronium bromide andpotassium chloride is aggravated by the fact that theKentucky protocol does not allow for the assessmentnecessary under veterinary standards to determinewhether a surgical plane of anesthesia has been reached

2. Although greater doses of sodium thiopental maydecrease the risk that its anesthetic effects will wear off,there exist other anesthetics (such as sodium pentobarbital)whose half-lives are much longer.

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or exceeded. Kentucky protocol does not require anindividual trained in anesthesiology to determine thatthe inmate is unconscious before the injection of eitherpancuronium bromide or potassium chloride, let aloneboth. Unlike standard practice in veterinary medicine,there appears to be no requirement in Kentucky thatthe inmate be observed, or that executioners monitor orperform any tests on the inmate, during the executionprocess. To the contrary, publicly available informationregarding lethal injection procedures indicates thatthere is no observer – much less a trained observer – inclose enough proximity to the inmate to determine theplane of anesthesia. In contrast, a veterinarianeuthanizing an animal continuously evaluates a numberof physiologic parameters to ensure that the animal isanesthetized to an appropriate depth beforeadministering a drug that causes the animal’s death. Thisevaluation requires constant contact with, andmonitoring of, the patient to confirm that the proper levelof anesthesia is maintained.

Further complicating the evaluation of an individual’sdepth of anesthesia is the use of a neuromuscularblocking agent, such as the pancuronium bromide usedin the Kentucky protocol. In the context of veterinaryeuthanasia, pancuronium bromide is unnecessary tobring about death. The Veterinary Amici are unawareof any veterinarian or veterinary group that advocatesthe use of neuromuscular blocking agents during theeuthanasia procedure. Because pancuronium bromideparalyzes the patient, it inhibits the veterinarian’s abilityto determine the patient’s level of consciousness. Apatient who has been injected with pancuronium bromidewould appear to the eye to be anesthetized when in fact

8

the patient could be fully conscious of the pain sufferedas a result of the potassium chloride injection. Inaddition, pancuronium bromide itself would causesuffering in an inadequately anesthetized patient. As aneuromuscular blocker, pancuronium bromide inhibitsall of the patient’s voluntary muscular functions,including breathing. If a patient is injected withpancuronium bromide before reaching a surgical planeof anesthesia, the patient will experience the feeling ofsuffocation while conscious.

In sum, Kentucky’s procedures for lethal injectiondo not meet the minimum standards of care used byveterinarians to provide for the humane euthanizationof animals. Based on their vast experience witheuthanasia and the drugs involved in the Kentucky lethalinjection protocol, the Veterinary Amici offer theinformation herein to assist the Court in determiningwhether inmates sentenced to death are subjected to aforeseeable danger of unnecessary pain and sufferingduring the execution process under Kentucky’s currentprotocol.

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ARGUMENT

I. THE PROTOCOL FOR THE USE OFPOTASSIUM CHLORIDE IN KENTUCKYEXECUTIONS FAILS TO COMPLY WITHMINIMUM VETERINARY STANDARDS FORHUMANE EUTHANASIA OF ANIMALS

A. Humane Euthanasia Prohibits the Use ofPotassium Chloride in a Conscious Patient

The use of potassium chloride, the drug that resultsin death under the Kentucky lethal injection protocol,fails to comply with minimum veterinary standards forthe humane euthanasia of animals. A potassium chloridesolution for intravenous injection contains highconcentrations of potassium and chloride ions, whichcause severe pain and suffering in a conscious patientfrom the moment of injection. See Harbison v. Little,No. 3:06-1206, 2007 WL 2821230, at *11 (M.D. Tenn. Sept.19, 2007) (“It is undisputed that, without properanaesthesia, the administration of pancuronium bromideand potassium chloride, either separately or incombination, would result in a terrifying, excruciatingdeath.”). Specifically, an injection of potassium chlorideirritates the inner walls of a patient’s veins, which areparticularly sensitive to potassium. Potassium chlorideultimately results in alterations in impulse generationin the heart, leading to cessation of cardiac activity anddeath.

Because intravenous injection of potassium chloridecauses severe pain to a conscious patient, AmericanVeterinary Medical Association (“AVMA”) standards

10

provide that potassium chloride may be administeredonly to a patient who has reached a surgical plane ofanesthesia. AVMA standards also provide that it is ofthe “utmost importance” that the anesthesia beadministered by someone trained and knowledgeable inanesthetic techniques:

It is of utmost importance that personnelperforming this technique are trained andknowledgeable in anesthetic techniques, andare competent in assessing anesthetic depthappropriate for administration of potassiumchloride intravenously. Administration ofpotassium chloride intravenously requiresanimals to be in a surgical plane of anesthesiacharacterized by loss of consciousness, loss ofreflex muscle response, and loss of responseto noxious stimuli.

AVMA Guidelines on Euthanasia (June 2007) (formerly the2000 Report of the AVMA Panel on Euthanasia) at 12,available at http://www.avma.org/issues/animal_ welfare/euthanasia.pdf (hereinafter, “AVMA Report”). Because ofthe painful effects of the drug, use of potassium chlorideon a conscious patient is “unacceptable” and “absolutelycondemned” in humane euthanasia. See AVMA Report at12. Thus, a veterinarian may administer potassium chlorideonly if he can first ascertain that unconsciousness has beenreached.

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B. A Veterinarian Following Kentucky’s LethalInjection Protocol Would Not Be Able toEnsure That a Patient Was at a Surgical Planeof Anesthesia

A surgical plane of anesthesia is described as “lossof consciousness, loss of reflex muscle response, and lossof response to noxious stimuli.” AVMA Report at 12.Although use of potassium chloride on an animal thathas not reached this state is “absolutely condemned” bythe AVMA, see id., Kentucky’s lethal injection protocolappears to include no procedures to ensure that aninmate has reached a surgical plane of anesthesia beforethe injection of potassium chloride. Nor are steps takento ensure that the surgical plane of anesthesia, onceestablished, is maintained or exceeded.3 See Baze, J.A.764 (finding that Kentucky’s lethal injection protocoldoes not use an electrocardiogram, a blood pressure cuffor a Bispectral Index monitor during administration ofthe drugs to monitor for consciousness).

In veterinary medicine, evaluating whether a patienthas achieved an appropriate plane of anesthesia is botha science and an art. It is extremely difficult for anuntrained individual to appropriately assess a patient’sanesthetic depth, and veterinarians rely on their skilland experience to do so. The observer must perform avariety of tests to assess the level of consciousnessthroughout the procedure and must be able to considerand perceive sometimes subtle clues from the patient.

3. An inmate could be conscious either because theindividual has not yet lost consciousness or because he hasregained consciousness after being anesthetized.

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Typically, a veterinarian, or a trained assistant,maintains constant contact with a patient throughout theprocess of administering anesthesia. In determiningwhether the patient is sufficiently anesthetized, aveterinarian assesses the level of consciousness by directevaluation of the patient’s physiologic parameters.Among the many vital signs considered are the patient’smuscle tone and the level of the patient’s musclerelaxation. A veterinarian also assesses the position ofthe eye and the presence or absence of any eyemovement. The patient’s respiratory and heart ratesmust be monitored. The veterinarian also tests thepatient’s reaction to stimuli by applying mildly painfulstimuli and observing any movement by the patient. Theveterinarian touches the patient to help assess thesevariables, and relies on monitors for data such as bloodpressure and heart rate. Such steps are necessary toensure that the patient has reached the desired surgicalplane of anesthesia, and require an experiencedveterinarian to touch and observe the patient at closeproximity. Because a variety of factors must beconsidered, the process of examining the patient takesseveral minutes, not merely a glance.

In contrast, Kentucky’s lethal injection protocolappears to make no provision for an appropriateexamination of an inmate’s consciousness during theanesthetic process, much less by a physician or medicalprofessional experienced in administering anesthesia.Rather, most of the observers and the individualsperforming the lethal injection typically remain in aseparate room from which they would be unable toevaluate the inmate for consciousness during theexecution. For the individuals who are in the execution

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chamber, there is no indication that these persons remainin sufficiently close proximity to the inmate to performany of the above-described tests.

The risk of consciousness is not merely theoretical.Evidence regarding executions performed using the samethree-drug combination of sodium thiopental, pancuroniumbromide and potassium chloride called for in Kentucky’slethal injection protocol suggests that a number of inmatesappeared to have retained consciousness throughout theexecution. See, e.g., Morales v. Tilton, 465 F. Supp. 2d 972,980 (N.D. Cal. 2006) (noting that several California inmatesmay have remained conscious despite the purportedinjection of five grams of sodium thiopental, two gramsmore than the dose called for in Kentucky’s lethal injectionprotocol); Florida Corrections Commission, SupplementalReport - Methods of Execution Used by States (1997) at10 (formerly available at http://www.fcc.state.fl.us/fcc/reports/reports.html) (acknowledging that some recipientsof the three-drug combination underwent a “violentreaction to lethal drugs,” raising grave concerns that theinmates were not, in fact, fully anesthetized prior to thepotassium chloride injection).

Finally, proper veterinary procedure demands thata veterinarian administering euthanasia solution to apatient ensure that all of the euthanasia solution wasdelivered intravenously. Sodium thiopental must beproperly administered intravenously, which can beextremely difficult if not impossible for an untrainedindividual. If the anesthetic is not properly injecteddirectly into the patient’s vein, the medication will leakinto surrounding tissue, thus lessening the effectiveness

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of the intended dosage. With a pH of 11, sodiumthiopental is very alkaline, and therefore would producea burning sensation and tissue damage if the drug werenot administered intravenously.

Given the myriad of potential problems createdby Kentucky’s complex lethal injection procedure, theadministration of drugs by inexperienced personnel withinadequate training serves only to increase the risk thatthe sodium thiopental anesthetic will not be properlydelivered to the inmate, and that the inmate will remaininadequately anesthetized when the potassium chlorideis administered. Without providing for carefulmonitoring of an inmate’s level of consciousness,Kentucky’s lethal injection protocol falls far short of theprecautions required in humane veterinary euthanasia.

C. The Short-Acting Nature of SodiumThiopental Makes It More Difficult toMaintain a Surgical Plane of Anesthesia Thanthe Anesthetic Used in Veterinary Euthanasia

The AVMA standards for euthanasia indicate thatthe ideal barbiturate for use in euthanasia is “potent,long-acting, stable in solution and inexpensive.” AVMAReport at 11. Consistent with these standards,Kentucky’s animal euthanasia regulations allow only forthe use of sodium pentobarbital for euthanasia ofanimals. 201 Ky. Admin. Regs. 16:090 § 5(1).4 As used in

4. AVMA guidelines do not limit the barbiturate to sodiumpentobarbital. Sodium pentobarbital is the preferred method,however.

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euthanasia, sodium pentobarbital rapidly producesunconsciousness and then depresses the areas of thebrain responsible for respiratory and cardiovascularcontrol. With a single injection of sodium pentobarbital,the patient rapidly progresses from a light to deep levelof anesthesia and ultimately dies.

In contrast to the Kentucky standard for euthanasiain animals, the Kentucky lethal injection protocol doesnot use sodium pentobarbital to achieve anesthesia anddeath for inmates. Rather, it calls for the use of sodiumthiopental, and then only for the purpose of anesthesia.Sodium thiopental, however, is considered an “ultra shortacting” barbiturate anesthetic. Baze, J.A. 762. Itsanesthetic effects therefore wear off more rapidly thanthose of sodium pentobarbital. As such, if sodiumthiopental were used to euthanize a veterinarypatient, the need for the veterinarian to evaluate forconsciousness would be all the more critical.

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II. THE USE OF PANCURONIUM BROMIDEMASKS CONSCIOUSNESS AND IS CONTRARYTO HUMANE VETERINARY EUTHANASIA

A. Pancuronium Bromide Causes a ConsciousPatient to Experience Suffocation

Pancuronium bromide, the second drugadministered under the Kentucky lethal injectionprotocol, does not contribute to anesthesia orunconsciousness. It is not an anesthetic or an analgesic.It serves no therapeutic purpose whatsoever. Rather,pancuronium bromide is a neuromuscular blocking agentthat completely paralyzes a patient’s voluntary muscles.A conscious patient who is administered pancuroniumbromide will endure pain and mental distress.Specifically, a conscious patient would be aware of theneed to breathe, the inability to do so and the terrifyingexperience of suffocation. See Harbison, 2007 WL2821230, at *11 (“The basic mechanics [of pancuroniumbromide and potassium chloride] are that the inmatewould first be paralyzed and suffocated (because theparalysis would make him unable to draw breath), thenfeel a burning pain throughout his body, and then suffera heart attack while remaining unable to breathe.”).The inmate’s suffering, however, would not be readilyapparent to observers, however, because the lack ofmuscular movement and inability to communicate wouldmake the inmate appear calm.

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B. Pancuronium Bromide Inhibits the Ability toAssess a Patient’s Consciousness

The muscle paralysis caused by pancuroniumbromide masks indicia of consciousness, making it evenmore difficult for observers to ascertain whether thepatient is unconscious. As described above, determiningwhether a patient has achieved a surgical plane ofanesthesia involves careful observation, includingobservation of the patient’s muscle movements andresponse to stimuli. Paralyzing the patient makes it farmore difficult for a veterinarian to effectively determinethe patient’s level of consciousness. The use ofpancuronium bromide therefore could create theimpression that a patient is unconscious, calm or serenewhen the patient is actually in extreme pain or suffering.

Several of the Veterinary Amici advised the Courtof this precise risk in Hill v. McDonough, 126 S. Ct. 2096(2006), in connection with Florida’s lethal injectionprotocol, which is for all pertinent purposes identical tothat employed in Kentucky. Br. of Amici Curiae Drs.Kevin Concannon, Dennis Geiser and Glenn PettiferSupporting Pet., Hill v. McDonough, 126 S. Ct. 2096(2006) at 14. Less than one year after the Hill amicusbrief was filed, Angel Diaz was put to death by lethalinjection. Following reports that the execution wasbotched, then-Governor Bush created a Commission onAdministration of Lethal Injection, which was “unableto reach a conclusion as to whether inmate Angel Diazwas in pain during the execution.” Lightbourne v.McCollum, No. SC06-2391, 2007 WL 3196533, at *2(Fla. Nov. 1, 2007). Similarly, a trial court reviewingevidence about the Diaz execution found that “‘[i]t isunclear and disputed whether inmate Diaz suffered anypain. It is unclear exactly how conscious or unconscious

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inmate Diaz was after [he was injected with sodiumthiopental]. . . . No witness testified that inmate Diazscreamed or yelled after the injection of pancuroniumbromide or potassium chloride.’” Id. at *15. It wasprecisely this inability to determine the level ofconsciousness or pain that the Veterinary Amici hadcautioned against in their Hill brief. Failure tocommunicate pain could be the result of (i) the absenceof pain or (ii) the inability to express the pain. Use of aparalytic agent, specifically pancuronium bromide,renders the subject unable to express pain and therebyinhibits the ability to determine whether the subject isexperiencing any pain, and if so, the severity of the pain.

In a veterinary context, pancuronium bromide iswholly superfluous to the goal of humane euthanasia.Its only effect would mask any suffering endured bythe patient and interfere with an assessment ofconsciousness. Its use as contemplated by the Kentuckylethal injection protocol is therefore contrary toveterinary standards and humane euthanasia of animals.5

5. In addition to Kentucky, at least 22 other states haveprohibited the use of neuromuscular blocking agents in euthanizinganimals, either expressly or by specifically mandating the use of amethod such as sodium pentobarbital. See, e.g., Ala. Code § 34-29-131; Ala. Admin. Code r. 930-x-1-.36; Alaska Stat. 08.02.050;Ariz. Rev. Stat. Ann. § 11-1021; Colo. Rev. Stat. § 18-9-201;Del. Code Ann. tit. 3, § 8001; Fla. Stat. § 828.058; Ga. Code Ann.§ 4-11-5.1; 510 Ill. Comp. Stat. 70/2.09; Kan. Stat. Ann. 47-1718(a);La. Rev. Stat. Ann. § 3:2465(C)(1); Me. Rev. Stat. Ann. tit. 17, § 1044;Md. Code Ann., Crim. Law § 10-611(a)(3); Mass. Gen. Laws Ann.ch. 140, § 151A; Mo. Ann. Stat. § 578.005(7); N.J. Stat. Ann. § 4:22-19.3; N.Y. Agric. & Mkts. Law 374(2-b); Okla. Stat. tit. 4, § 501(c);S.C. Code Ann. § 47-3-420(A); Tenn. Code Ann. § 44-17-303(c);Tex. Health & Safety Code Ann. § 821.052(a); W. Va. Code Ann.§ 30-10A-8; Wyo. Stat. Ann. § 33-30-216.

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III. THE PREFERRED METHOD OF HUMANEEUTHANASIA IN ANIMALS IS THE USE OFSODIUM PENTOBARBITAL ALONE

In contrast to the drugs called for in Kentucky’slethal injection protocol, the preferred method foreuthanasia of veterinary patients is intravenous injectionof a solution that contains a barbiturate called sodiumpentobarbital. Sodium pentobarbital depresses thecentral nervous system, with loss of consciousnessprogressing to anesthesia. With a sufficiently largeoverdose of the drug, deep anesthesia progresses toapnea and ultimately cardiac arrest within a matter ofminutes. Use of sodium pentobarbital results in rapidloss of consciousness and minimal or transient painassociated merely with insertion of the needle. AVMAReport at 11. Moreover, it is potent, long-acting, stablein solution and inexpensive.

Consistent with the goal of achieving death inanimals in the most humane manner possible, Kentuckyveterinary law mandates that humane euthanasia beaccomplished by the use of a single drug: sodiumpentobarbital. 201 Ky. Admin. Regs. 16:090 § 5(1).6 Thisavoids the use of either pancuronium bromide orpotassium chloride. It thus makes irrelevant the fact that“[i]t is undisputed that, without proper anesthesia, theadministration of pancuronium bromide and potassiumchloride, either separately or in combination, wouldresult in a terrifying, excruciating death.” Harbison,2007 WL 2821230, at *11.

6. The Kentucky regulation allows only two options: sodiumpentobarbital, or sodium pentobarbital with lidocaine. Lidocaineis a common local anesthetic.

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CONCLUSION

For all the foregoing reasons, the Veterinary Amicirespectfully submit that the protocol for execution bylethal injection, as presently articulated by the State ofKentucky, fails to comport with veterinary standards forhumane euthanasia.

Respectfully submitted,

SIMONA G. STRAUSS

Counsel of RecordLUCIA MACDONALD

GEORGE R. MORRIS

ANGELA M. MOORE

SIMPSON THACHER & BARTLETT LLP2550 Hanover StreetPalo Alto, California 94304(650) 251-5000

Counsel for Amici Curiae