USA | The Five-Minute Rule: A Proposed Constitutional Safeguard for Botched Executions

The author, a medical ethicist and practicing physician, argues that when executions fail to cause death within five minutes, the Constitution requires immediate medical resuscitation—even if it means saving the life of a condemned prisoner...

“It’s hurting so bad,” Byron Black said five minutes after the State of Tennessee initiated his execution last month. The 69-year-old’s anguished words echoed through the death chamber as a device designed to save lives may have prolonged his dying, creating the very cruelty the Constitution forbids.

Mr. Black had suffered from congestive heart failure, and was thus implanted with an internal cardiac defibrillator/pacemaker (ICD). Before his execution, he asked the court to deactivate his ICD to avoid the possibility of resuscitative shocks and pacing, thereby potentially prolonging his dying and causing cruelty. A lower court granted his request, but no medical facility was willing to perform the task. The Tennessee Supreme Court eventually overturned the lower court on procedural grounds, and the execution went ahead on August 5.

Black’s case highlights a fundamental tension in how we carry out capital punishment while meeting constitutional requirements. Lethal injection is not a medical act, and a doctor owes no duty to the state to advise on a cruelty-free execution method or make a prisoner facing execution more fit for killing.

According to the Eighth Amendment of the US Constitution, capital punishment, to be lawfully delivered, must occur without cruelty. Cruelty during an execution can sometimes be surmised by those tasked with observation, but what cannot be known is the subjective experience of the executed prisoner. Following the Supreme Court’s decision in Estelle v. Gamble, prisoners have a constitutional right to health care, and the warden is under a legal duty to provide it until the prisoner dies a natural death or is executed. A prisoner condemned to death cannot be executed by stealth or neglect. Capital punishment cannot be brought about in consequence of withholding necessary healthcare. Nor can it occur by the infliction of sub-lethal injuries that in the course of time are expected to worsen and cause death.

Analytically, a death brought about near instantaneously would seem to eliminate subjective cruelty. A prisoner who survives an execution but suffers sub-lethal injuries that, without treatment, will or may lead to death or disability is again entitled to health care, and the warden is under a duty to provide it. Failure to provide the medical necessities of life may be a criminal offense in some states. Therefore, an execution must cause near instant death. If the execution fails, the prisoner must be substantially free of risk of disabling injuries due to the failed execution, or medical intervention must be immediately available to reduce that risk. If a prisoner survives an execution attempt, the Constitutional duty requiring the delivery of necessary health care is revived, as well.

This constitutional framework raises a critical medical question: Apoptosis, or programmed cell death, may occur after cellular exposure to noxious stimuli. Injury, once initiated, may tip towards recovery or apoptosis, depending on the nature of the injury. Certain noxious injuries are fundamentally time-based. That is, the cellular response between recovery and apoptosis will favor one or the other, based on the duration of the noxious stimuli alone. In the brain, sudden and complete arrest of circulation will deplete all brain oxygen in 10-15 seconds and brain glucose and adenosine triphosphate (ATP) in five minutes. ATP is the body’s fuel and is critical for energy transport within all cells. After five minutes of circulatory arrest, brain cell apoptosis occurs and is not reversible under any circumstances.

An execution method that by design leads to permanent brain injury as an incidental effect of a failed execution that is not followed by medical intervention violates the prisoner’s rights to medical care in addition to the rights under the Eighth Amendment. If timely medical intervention can prevent brain damage, it must be available. An execution method that results in permanent brain injury from a failed execution where no medical resuscitation was available after the failure would be suspect on these grounds.

Lethal injection has been shown to fail to produce near instantaneous death and to result in injury that may have been recoverable had proper healthcare been initiated. If lethal injection is to be an acceptable form of capital punishment, it needs to produce death within five minutes to avoid permanent brain injury. If death has not occurred within five minutes of the initiation of an execution, emergency resuscitation must be commenced at that time to prevent the occurrence of permanent brain injury.

Had Tennessee followed such a five-minute rule, officials would have been prepared to either ensure Black’s swift death or provide immediate medical intervention—potentially avoiding the very cruelty his ICD was designed to prevent.

— Joel Zivot is a practicing physician in anesthesiology and intensive care medicine and a senior fellow in ethics at Emory University in Atlanta, Georgia. Zivot, who also holds a legal master’s degree, is a recognized expert who advocates against the use of lethal injection in the death penalty and against the use of the tools of medicine as an arm of state power. Follow him on “X”/Twitter @joel_zivot

Source: jurist.org, Joel Zivot, Ingrid Burke Friedman | JURIST Editorial Director, September 19, 2025

"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."

— Oscar Wilde