Our European allies are imposing economic sanctions. Multinational pharmaceutical companies are threatening our supply of vital drugs. At the same time, medical practitioners have been drawn into an area that is foreign to them.
How did the U.S. get itself into this position? Blame the death penalty.
In an attempt to carry out long-scheduled executions, states have been embarrassing themselves in a frenetic scramble to secure execution drugs from wherever they can find them.
Increasingly, they are resorting to secrecy and backup execution protocols necessitated by drug shortages instead of treating those condemned to death with the dignity appropriate to any human life.
A short list of recent developments illustrates the debacle that encompasses today's practice of lethal injection:
- In an attempt to obtain execution drugs, many states turned to a tiny overseas distributor called “Dream Pharma,” located in the back of a driving school in London. The drugs were seized by the U.S. Drug Enforcement Agency, and the United Kingdom quickly took measures to prevent further exports.
- Ohio has changed its execution protocol five times in recent years. Its latest proposal is to use a second-tier backup procedure, involving a combination of drugs never before applied in an execution.
- Florida also instituted an un-tried combination of drugs, different from Ohio's. Florida begins with the injection of midazolam, identified as a sedative rather than an anesthetic. The next drug paralyzes the inmate so no pain can be observed; it then injects an extremely painful liquid salt, potassium chloride. If the midazolam does not anesthetize the inmate effectively, the execution will be excruciating—though no one but the inmate will notice.
- A few months ago, Texas announced its lethal injection drugs were reaching their expiration date. Shortly before its next scheduled execution, the state suddenly found a new source for the drug it had been using (pentobarbital): a compounding pharmacy in Houston, unregulated by the Food and Drug Administration. Once the source became public, the pharmacy demanded the return of the drugs, but Texas declined. Last year, contaminated drugs from a compounding pharmacy killed 60 people.
- Missouri also announced it would introduce a new drug into the lethal injection process—propofol. When the German manufacturer responsible for almost all of the propofol used in the U.S. heard of this plan, it protested, indicating the entire supply of propofol for vital surgeries in the U.S. could be jeopardized. Missouri returned the drug and is now resorting to a compounding pharmacy, declaring them part of the state's “execution team.”
Using drugs to kill people is not new.
As hangings began to appear distasteful, New York considered using lethal injections as far back as 1890. It chose a newer technology instead—the electric chair—to carry out executions.
Starting in 1976, when the Supreme Court allowed capital punishment to resume after a four-year pause to allow states to draft more precise death penalty laws, states began investigating alternative approaches to carrying out the death penalty.
In Oklahoma a coroner suggested a three-drug execution process, without stipulating who would oversee the procedure. Compared to the electric chair or the gas chamber, it seemed a more palatable means of taking human life.
Texas, in 1982, became the first state to carry out a lethal injection, using a three-drug procedure.
Eventually, every death-penalty state and the federal government adopted lethal injection, and the U.S. Supreme Court gave its approval in 2008. Over 1,000 lethal-injection executions were carried out around the country before the present crisis emerged.
Although many lethal injections did not go as planned, the most embarrassing incident occurred in Ohio in 2009.
Romell Broom was strapped to the gurney and prodded with IV needles for nearly two hours before the governor called a halt to the failed proceedings. Ohio recognized that changes had to be made, and it became the first state in the country to use a single-drug (sodium thiopental) in executions.
The sole supplier of sodium thiopental to the U.S. was an Illinois-based company named Hospira, Inc.
In 2010 Hospira announced it objected to the use of its drug in executions and eventually ceased production altogether, citing objections to the death penalty by Italian workers who manufactured the drug.
Since all states were using thiopental, they were forced to change their execution process.
After sources from overseas were cut off by a federal court ruling that imported drugs must be controlled by the Food and Drug Administration, most states turned to a drug called pentobarbital, which was widely used for anesthetic purposes in the U.S.
Although the supply at first seemed sufficient, the main manufacturer of pentobarbital—Lundbeck, Inc. of Denmark—issued a strong statement condemning the use of this drug in executions and promising to restrict its sale to prisons.
With no new supply, the existing quantities of pentobarbital began to expire. Many states searched for either alternative sources or alternative drugs to carry out executions.
Compounding pharmacies, which can prepare a single dose of a drug in response to a prescription, and which are not as well known as the large pharmaceutical companies, became a natural choice for execution drugs.
South Dakota was the first to use this source in 2012. Other more prolific execution states such as Texas, Ohio, Georgia, and Missouri also announced they would use compounding pharmacies.
However, these pharmacies are part of the medical profession, and states' efforts to involve the medical community have often been met with resistance.
States adopted various strategies in response. Missouri's included a pharmacy in its “execution team.” Ohio added “Medical Team” to its execution protocol. But the growing difficulties in obtaining drugs from compounding pharmacies may spell future trouble in persisting with this medical model of taking lives.
The use of new drugs and new, unregulated sources is under attack in the courts, with the international community and the medical profession watching closely. Every change to a state execution procedure is challenged in court by those about to be executed. On the international front, the European Commission has imposed export controls on various drugs used in executions. Within the medical community, organizations such as the American Society of Anesthesiologists have issued statements warning of drugs being removed from the market because of their use in executions.
Congress is already considering FDA control over compounding pharmacies, following the string of deaths that occurred in 2012 from contaminated drugs produced by these pharmacies.
But with the death penalty already declining in public support and use, the lethal injection crisis may be one more indicator that capital punishment no longer comports with our evolving standards of decency.
Richard Dieter is Executive Director of the Death Penalty Information Center. He welcomes comments from readers.