No Drugs, No Executions: The End of the Death Penalty

As states scramble to find new cocktails of death, could a lack of options spell the end of capital punishment?

'Old Sparky', the decommissioned electric chair in which 361 prisoners were executed between 1924 and 1964, at the Texas Prison Museum in Huntsville, Texas. 
National Journal
Dustin Volz
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Dustin Volz
Oct. 28, 2013, 2 a.m.

On Oct. 15, Flor­ida ex­ecuted Wil­li­am Happ, a man who most agreed de­served little sym­pathy. Happ kid­napped 21-year-old An­gela Crow­ley in 1986 from out­side a con­veni­ence store in Crys­tal River and raped and strangled her be­fore dump­ing her tor­men­ted body in­to the Cross Flor­ida Barge Canal. Three years later he was con­victed of rape and murder and sen­tenced to death.

Happ’s ex­e­cu­tion las­ted 14 minutes be­fore he was pro­nounced dead — double the time typ­ic­ally ex­pec­ted when pento­bar­bit­al, the ex­e­cu­tion­er’s drug of choice for years, was used. He “re­mained con­scious longer and made more body move­ments after los­ing con­scious­ness than oth­er people ex­ecuted re­cently by leth­al in­jec­tion,” ac­cord­ing to As­so­ci­ated Press re­ports.

Happ died for his crimes com­mit­ted 27 years ago. Like hun­dreds be­fore him, Happ’s death was ad­min­istered through an in­tra­ven­ous in­jec­tion of a leth­al drug cock­tail.

Like no one be­fore him, Happ was in­jec­ted with midazolam hy­dro­chlor­ide, a sed­at­ive that had nev­er be­fore been used for an ex­e­cu­tion in the United States.

Happ’s ex­e­cu­tion re­flects an Amer­ic­an death-pen­alty sys­tem in crisis: States are run­ning out of the drugs they rely on to carry out death sen­tences as al­tern­at­ives for how to se­cure them quickly di­min­ish. And no one wants to in­nov­ate in the ex­e­cu­tion in­dustry. As the med­ic­al com­munity works to dis­tance it­self from the sci­ence of killing people, states are at­tempt­ing to forge a dif­fi­cult road ahead, one fraught with lit­ig­a­tion, in­ter­na­tion­al ten­sion, and un­cer­tainty.

Race to the Bot­tom

Flor­ida’s new drug of choice re­placed pento­bar­bit­al, a bar­bit­ur­ate the state used for years as part of its three-drug leth­al cock­tail un­til de facto boy­cotts by for­eign drug man­u­fac­tur­ers ex­hausted its sup­ply. Midazolam hy­dro­chlor­ide, mar­keted as Versed, was chosen not be­cause of its ef­fect­ive­ness but be­cause of its avail­ab­il­ity, a de­cision leg­al ex­perts say calls in­to ques­tion Flor­ida’s com­mit­ment to the Eighth Amend­ment’s prom­ise of no in­flic­tion of cruel or un­usu­al pun­ish­ment.

Flor­ida is just one of sev­er­al states scram­bling to up­date or re­fine its cap­it­al-pun­ish­ment pro­tocol amid a sud­den short­fall of its leth­al in­jec­tion drugs, res­ult­ing in an un­pre­ced­en­ted in­con­sist­ency in the way in­mates are ex­ecuted in the United States. Even as a steady ma­jor­ity con­tin­ues sup­port­ing the death pen­alty, the dif­fi­culty in ob­tain­ing new leth­al drugs, as­so­ci­ated leg­al hurdles, and a gap­ing void of bet­ter ex­e­cu­tion al­tern­at­ives has left cap­it­al pun­ish­ment in Amer­ica with an un­cer­tain fu­ture.

Dis­tilling the amount of pain Happ en­dured is nearly im­possible be­cause the second drug in Flor­ida’s three-drug cock­tail, vec­uroni­um brom­ide, acts as a para­lyt­ic agent. Its pur­pose is largely cos­met­ic, ef­fect­ively mask­ing how much pain the sub­ject may be en­dur­ing.

“We don’t even know if the new drug (midazolam) is work­ing or not,” said Richard Di­eter, the ex­ec­ut­ive dir­ect­or of the Death Pen­alty In­form­a­tion Cen­ter. “Everything is a bit of an ex­per­i­ment with a hu­man sub­ject. If this were or­din­ary medi­cine, that would not be al­lowed, but this is the death pen­alty and that’s how it goes.”

“If this were or­din­ary medi­cine, that would not be al­lowed, but this is the death pen­alty and that’s how it goes.”

In a let­ter to Flor­ida Gov. Rick Scott last month de­scrib­ing the changes to its leth­al-in­jec­tion pro­tocol, Flor­ida De­part­ment of Cor­rec­tions Sec­ret­ary Mike Crews wrote that “the pro­ced­ure has been re­viewed and is com­pat­ible with evolving stand­ards of de­cency that mark the pro­gress of a matur­ing so­ci­ety, the con­cepts of the dig­nity of man, and ad­vances in sci­ence, re­search, phar­ma­co­logy, and tech­no­logy. He ad­ded: “The pro­cess will not in­volve un­ne­ces­sary linger­ing or the un­ne­ces­sary or wan­ton in­flic­tion of pain and suf­fer­ing. The fore­most ob­ject­ive of the leth­al in­jec­tion pro­cess is a hu­man and dig­ni­fied death.”

A de­part­ment spokes­wo­man con­firmed the switch was made be­cause Flor­ida’s cache of pento­bar­bit­al ex­pired. She de­clined to give spe­cif­ics about how the up­dated leth­al-in­jec­tion pro­cess was vet­ted to en­sure it qual­i­fies as “a hu­mane and dig­ni­fied death.”

“The de­part­ment is not go­ing to go in­to any de­tail about how or why the pro­tocol was de­signed,” Misty Cash, the spokes­wo­man, told Na­tion­al Journ­al. “Those de­cisions are ex­empt from pub­lic re­cord be­cause they could im­pact the safety and se­cur­ity of in­mates and of­ficers who are in­volved in that pro­cess.”

Flor­ida’s re­fus­al to dis­close its pro­cess for se­lect­ing its new drug bol­sters crit­ics who claim it and oth­er states are will­ing to risk vi­ol­at­ing gen­er­ally ac­cep­ted stand­ards of de­cency in their pur­suit of a re­li­able meth­od of ex­e­cu­tion.

(Peter Bell)

“Every time a state changes their meth­od of ex­e­cu­tion, they lose cred­ib­il­ity about a pro­ced­ure that should be as hu­mane as we can make it. Everything that states are do­ing now goes against that very grain,” said De­borah Denno, a cap­it­al-pun­ish­ment ex­pert who op­poses the death pen­alty. “They choose drugs be­cause they are avail­able, not be­cause they know any­thing about those drugs.”

Texas’s changes to its leth­al-in­jec­tion pro­tocol il­lus­trates that real­ity. When the state first ad­op­ted leth­al in­jec­tion as a meth­od of ex­e­cu­tion in 1982, a three-drug se­quence con­sist­ing of so­di­um thi­opent­al, pancuroni­um brom­ide, and po­tassi­um chlor­ide was de­ployed. In March 2011, the state re­placed so­di­um thi­opent­al with pento­bar­bit­al be­cause the state en­countered dif­fi­culty pro­cur­ing the old drug, ac­cord­ing to Texas De­part­ment of Crim­in­al Justice spokes­man Jason Clark. A year later, the de­part­ment again mod­i­fied its ex­e­cu­tion pro­tocol, this time from a three-drug se­quence to just one drug: a leth­al dose of pento­bar­bit­al, a drug more com­monly used to eu­th­an­ize pets.

This change, like the first, oc­curred be­cause “the agency’s stock of [pancuroni­um brom­ide] ex­pired and the agency was un­able to ob­tain a new ship­ment,” Clark said.

In Ohio, pento­bar­bit­al re­mains the “primary meth­od of in­tra­ven­ous ex­e­cu­tion,” but the state up­dated its ex­e­cu­tion policy in Oc­to­ber to al­low for a com­bin­a­tion of midazolam and hy­dro­morphone to be used in­stead. The state says its sup­ply of pento­bar­bit­al has ex­pired, and with no way to eas­ily re­stock, the backup meth­od is likely to be­come the new nor­mal. When asked how Ohio settled on its backup choice, an of­fi­cial said the state “re­viewed all avail­able in­form­a­tion from oth­er states, and con­sidered all avail­able op­tions” but did not provide fur­ther de­tail.

Eight days after Flor­ida ex­ecuted Happ, Mis­souri planned to put Al­len Nick­las­son to death with propo­fol. The an­es­thet­ic, which con­trib­uted to Mi­chael Jack­son’s death by over­dose in 2009, had also nev­er been used be­fore for a hu­man ex­e­cu­tion. But buck­ling from pres­sure from the med­ic­al com­munity, which ar­gued propo­fol could in­flict in­hu­mane levels of pain, Gov. Jay Nix­on hal­ted Nick­las­son’s ex­e­cu­tion to en­sure “justice is served and pub­lic health is pro­tec­ted.” But a more prac­tic­al mat­ter was likely weigh­ing on Nix­on’s mind: The cap­it­al-pun­ish­ment-free European Uni­on likely would have im­posed strong re­stric­tions on the ex­port of the drug to the U.S.

A Solu­tion or An­oth­er Stop­gap Ef­fort?

As some states zig and oth­ers zag to keep their ex­e­cu­tions from be­ing in­ter­rup­ted, else­where, in un­sus­pect­ing places, ex­as­per­ated politi­cians are pub­licly ques­tion­ing wheth­er cap­it­al pun­ish­ment is worth the grow­ing ava­lanche of leg­al and prac­tic­al head­aches. In Arkan­sas, a state with a rich his­tory of ex­e­cu­tions (Bill Clin­ton fam­ously flew home from cam­paign­ing in 1992 to preside over Ricky Ray Rect­or’s ex­e­cu­tion), Gov. Mike Beebe, a mod­er­ate Demo­crat, said earli­er this year that he would sign a bill end­ing the state’s death pen­alty if it came to his desk.

At­tor­ney Gen­er­al Dustin McDaniel, also a Demo­crat, has been even more force­ful. Though he sup­ports cap­it­al pun­ish­ment in prin­ciple, McDaniel has be­gun pub­licly scru­tin­iz­ing the prac­tice. Due in part to the dif­fi­culty in ob­tain­ing the ne­ces­sary drugs — and a bevy of re­lated leg­al chal­lenges — his state has not car­ried out an ex­e­cu­tion since 2005 des­pite hav­ing nearly 40 pris­on­ers on death row.

“I can no more flap my arms and fly across the state than I can carry out an ex­e­cu­tion.”

“Our sys­tem is com­pletely broken, and I don’t know how to say it more bluntly than that,” McDaniel told Na­tion­al Journ­al. “It’s a com­plete im­possib­il­ity. I can no more flap my arms and fly across the state than I can carry out an ex­e­cu­tion.”

Doc­tors and re­search­ers aren’t ex­actly clam­or­ing to de­vel­op new meth­ods of killing people, and no one is ad­voc­at­ing a re­gres­sion to older forms of ex­e­cu­tion, like the elec­tric chair or gas cham­ber. But even if a new, cut­ting-edge tech­nique was de­veloped some­where, that too would al­most cer­tainly pro­voke a tor­rent of lit­ig­a­tion.

“Let’s say that there was ma­gic­ally a va­por, a mist, a pill, a fatal hyp­not­ic stare. You still have to find Amer­ic­an man­u­fac­tur­ers who are will­ing to pro­duce it and courts who are will­ing to ac­cept it,” McDaniel said. “I don’t see any of that hap­pen­ing. It’s sci­ence fic­tion and leg­al fic­tion.”

McDaniel said he has con­sidered turn­ing to com­pound­ing phar­ma­cies — where products are chem­ic­ally craf­ted to fit an in­di­vidu­al per­son’s needs — with­in the state to pro­duce leth­al-in­jec­tion cock­tails as “the only re­main­ing op­tion.” But des­pite suc­cesses found in Geor­gia, South Dakota, and Texas, McDaniel pre­dicts that “there is no way a com­pound­ing phar­macy will pass the lit­ig­a­tion muster.”

Already, com­pound­ing phar­ma­cies have proven to be a dif­fi­cult path to forge. Texas re­stocked its sup­ply of pento­bar­bit­al by turn­ing to a phar­macy in sub­urb­an Hou­s­ton, which was pub­licly iden­ti­fied through a Free­dom of In­form­a­tion re­quest made by the As­so­ci­ated Press earli­er this month. The “outed” phar­macy then de­man­ded Texas re­turn its drugs, which the state re­fused. Mean­while, three in­mates on death row are su­ing the state on grounds the drugs could cause cruel and un­usu­al pun­ish­ment, as their pro­duc­tion is se­cret­ive and bey­ond the reg­u­lat­ory pur­view of the Food and Drug Ad­min­is­tra­tion.

Mis­souri, hard up after de­cid­ing to forgo us­ing the an­es­thet­ic Mi­chael Jack­son over­dosed on, an­nounced last week that it, too, had settled on com­pound­ing phar­ma­cies to pro­duce pento­bar­bit­al.

Three bills — one in the Sen­ate, two in the House of Rep­res­ent­at­ives — deal­ing with reg­u­lat­ory over­sight of com­pound­ing phar­ma­cies have earned com­mit­tee con­sid­er­a­tion this year. Such le­gis­la­tion is likely to re­strict a state’s abil­ity to rely on com­pound­ing phar­ma­cies for its leth­al drugs be­cause they would force more trans­par­ency, tight­en pre­scrip­tion re­quire­ments and ex­pose phys­i­cians to li­ab­il­ity.

Leth­al in­jec­tion states are stuck, and quickly run­ning out of places to turn to se­cure the in­gredi­ents needed to ex­ecute a grow­ing back­log of pris­on­ers on death row. Med­ic­al prac­ti­tion­ers and phar­ma­ceut­ic­al com­pan­ies are in the busi­ness of sav­ing lives, not help­ing to end them, and are in­creas­ingly un­will­ing to have their name as­so­ci­ated to the prac­tice.

Ad­voc­ates like Denno see this rising ten­sion as an un­ex­pec­ted boon for their cause, something that is suc­ceed­ing where more-con­ven­tion­al meth­ods — Eighth Amend­ment law­suits, in­no­cence pro­jects, and demon­stra­tions of ra­cial and so­cioeco­nom­ic bi­as — have failed.

“The drug short­age and what caused it and what per­petu­ates it and what res­ults from it has noth­ing to do with the ex­e­cu­tion pro­cess in this coun­try. Non­ethe­less, it may be the factor that ends up fi­nally ab­ol­ish­ing the death pen­alty,” she said. “And it’s an irony be­cause it’s noth­ing any death-pen­alty lit­ig­at­or could have hoped for.”

Cap­it­al pun­ish­ment in Amer­ica is not go­ing to dis­ap­pear overnight. But an ex­e­cu­tion­er stripped of his tools is as good as a tooth­less shark.

“When the death pen­alty goes, it’s not just go­ing to be, well, we couldn’t fig­ure out a way to kill people,” DPIC’s Di­eter said. But “it’s one more straw on the camel’s back.”

Cor­rec­tion: A pre­vi­ous ver­sion of this art­icle said Ger­man man­u­fac­turer Freseni­us Kabi had threatened to stop ship­ping propo­fol to the U.S. if Mis­souri used the drug in its ex­e­cu­tions. The European Uni­on has stated it would likely re­strict the drug’s ex­port­a­tion to the U.S. in such an event.

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