Why an Emory physician built a second career as a death penalty expert

After it intersected with his job as an anesthesiologist, Dr. Joel Zivot devoted years to studying the death penalty. Now, he's concerned about a new form of execution, nitrogen hypoxia, which was used in Alabama for the first time in January.

132
Why an Emory physician built a second career as a death penalty expert

Photograph by Bernd Obermann / Corbis Documentary / Getty Images

Dr. Joel Zivot first began researching the death penalty 12 years ago when it suddenly affected his day job. As an anesthesiologist in the ICU at Emory University Hospital, Zivot frequently used the drug sodium thiopental. But in 2011, the drug disappeared from the market and caused a drastic shortage in ICUs across the country. When Zivot looked into the cause of the shortage, he found the drug was pulled by manufacturer Hospira after they couldn’t promise the European Union—who threatened to ban the export of lethal injection drugs—that sodium thiopental wasn’t used for executions. “I felt outraged that this drug I used to heal could also be involved in [lethal injection],” says Zivot.

He still works in critical care at Emory, but his feelings following that sodium thiopental shortage turned into a second career dedicated to studying lethal injection and its medical effects. For the past decade, Zivot has acted as a medical expert in numerous death penalty cases throughout the South. Legal defense teams seek him out for medical examinations before execution, for expert testimony in court, and, in rare cases, for autopsies to assess a victim’s experience during execution. In his research, Zivot has found that lethal injection victims often die of pulmonary edema, or fluid in the lungs, instead of the drugs stopping the heart, which is the intended, painless cause of death in an execution. Pulmonary edema instead causes a painful experience similar to drowning.

“I’m not an abolitionist of the death penalty, but I’d call myself an agnostic,” Zivot says, “My angle here became that if capital punishment is a technical act, it has to be done technically correct.”

Today, his attention has shifted to a new method of execution, nitrogen hypoxia, that Zivot believes also induces pain for a person on death row. On January 26, Kenneth Smith, an Alabama man convicted in 1988 for a murder-for-hire killing, was the first person to be executed in the United States by nitrogen hypoxia. On a gurney in a prison in Atmore, Alabama, Smith died by breathing nitrogen gas through a face mask, depriving him of oxygen. State officials said prior to the execution that the nitrogen would render Smith unconscious within a few seconds. According to five Alabama journalists who witnessed the execution, that didn’t happen. Smith held his breath until he couldn’t, appeared conscious for several minutes, and then “shook and writhed” on the gurney for two minutes. One of those reporters said that of the five executions he had witnessed, it was the most violent reaction he had seen. From the first flow of gas to the time of death, the execution took 22 minutes.

• • •

Zivot credits his passion for death penalty ethics to his background. His family of lawyers taught him to argue with evidence and expertise. Growing up and practicing medicine in Canada before moving to Atlanta also affected his perception of lethal injection as abnormal compared to his American medical peers, he says.

After the sodium thiopental shortage, he spent two years further researching the medical act of lethal injection, using resources from the Death Penalty Information Center in Washington D.C. By 2013, Zivot was ready to bring his medical expertise to the public; he wrote an opinion piece for USA Today highlighting how the controversy of drugs used in lethal injections could lead to hospital shortages like he had experienced. The article gained the attention of a legal defense team of a person on death row in Florida, who consulted Zivot to examine their client for any health issues that could complicate lethal injection. It was unlike any medical examination he performed, Zivot says, with the man “completely shackled head to toe.” Zivot looked at the prisoner’s feet for peripheral circulation, vascular disease, or any other ailment that might impede state officials from accessing a vein. But he didn’t find any health issues, and the man was later executed.

“Around a death penalty case, we’re told maximally evocative stories about a convict’s transformation, or that these horrible murderers are owed nothing in return,” Zivot says. “It occurred to me, acting as a physician in Florida, that those narratives were false. They are owed not to be tortured or punished in a cruel way.”

• • •

Zivot went back to school to learn about the ethical and legal nuances of the death penalty. In six years he earned both a master’s degree in bioethics and a law degree from Emory. He continued to medically examine people on death row and write opinion pieces on the cruelty of lethal injection for the Guardian, CNN, Slate, and more. “I wanted to use science and medicine to expose techniques that are cruel,” Zivot says, “But it’s extremely difficult to get the public to see science for such an emotional issue.”

Zivot says that another roadblock in his work is bureaucracy. “I’d be given the protocol of an execution technique [from a state’s corrections department] with the entire document redacted,” Zivot says. “I don’t know who is involved or what the plan is, so they have blanket immunity if something were to go wrong.” In 2018, he obtained 250 autopsies of executions from lethal injection in the U.S. and found that victims died from pulmonary edema 80 percent of the time. Zivot presented his findings to the U.S. Supreme Court as part of his expert testimony in Bucklew v. Precythe, a case on the behalf of Rusty Bucklew, who was on death row in Missouri. Zivot argued that lethal injection violated the cruel and unusual punishment clause of the 8th Amendment, pointing to his research that lethal injection often did not result in a painless stopping of the heart. The court ruled against Bucklew, with the majority opinion defining the death penalty as justifiable as long as “it does not intend pain.”

​​“It’s frustrating for me because death is an abstraction for the people making these decisions, when treating death is part of my job in the ICU,” Zivot says, “They justify killing a person who did something terrible, but everyone still deserves to not be tortured.”

• • •

Zivot first worked with Kenneth Smith when, on behalf of Smith’s legal team, he examined him following a failed execution attempt by lethal injection in 2022. When Zivot later learned that nitrogen hypoxia could be used to execute Smith, he decided to take a more public approach for his argument against the process. “I realized that I’ve been losing every time [I argued against lethal injection], and 100 percent of these guys I worked with were killed in a cruel way,” Zivot says, “So I needed a new strategy.”

He stated in a letter to the United Nations in early January that the physical experience of involuntarily breathing pure nitrogen would amount to torture for Smith. A successful death by nitrogen hypoxia requires natural breathing, which is unlikely when a human faces death, Zivot wrote. He pointed to a study of volunteers who breathed in small amounts of pure nitrogen and experienced convulsions and seizures that induced vomiting and choking. The UN made a statement saying they were “alarmed” over the “untested method.” Alabama officials still pushed forward with the execution.

In a news conference after Smith’s execution, Alabama attorney general Steve Marshall called the execution “textbook” and said that nitrogen hypoxia is now “a proven method” that could offer “a blueprint for other states.” Alabama, Mississippi, and Oklahoma are the only states who have legalized executions via nitrogen, but other states could follow.

The reports of the journalists who attended Smith’s execution affirmed for Zivot the concerns he outlined in his UN letter. “The state will say it was a success and give an information underload for the execution,” Zivot says. “Ultimately, the goal is to produce a corpse.”

He plans to continue following cases of both lethal injection and nitrogen hypoxia. Alabama plans to use it for 43 more inmates on death row. “I feel compelled to keep going and expose techniques that are cruel and, to me, impersonations of science,” says Zivot. “This work has made me feel so grateful for my own life and privilege. The responsibility of the privileged is to roll up their sleeves and try to make the world better.”

Advertisement