Last month’s botched Oklahoma execution has led to increased awareness about questionable sources of drugs used for lethal injection by states in the U.S. Instead of passing away quickly and painlessly from lethal injection, Clayton D. Lockett awoke muttering and writhing in apparent pain in what “looked like torture” according to one of his lawyers. Cause of death: a heart attack.
What’s in That Lethal Injection Cocktail?
Although considered the most humane way of putting inmates to death, lethal injection is quickly becoming somewhat unregulated and therefore sometimes might be considered “cruel and unusual.” Lockett’s is not the first questionable execution in recent years; in January Dennis McGuire coughed and snorted through an execution that lasted 15 minutes. Apparently the state had exhausted its supply of pentobarbital, which had been used for lethal injections. Whatever the new execution procedure is, state execution expert Dr. Mark Dershwitz said no science can tell how long the new procedure can take to kill an inmate. Attorneys for the state have persuaded a judge that the Constitution does not entitle condemned prisoners to die painlessly, so long as the punishment is not cruel. Hear that, folks? Inflicting pain is not cruel.
Drug Shortages Call for Desperate Measures
State correctional systems are running low on drugs used for lethal injection, sometimes because suppliers don’t support the death penalty. Some believe desperate states are now buying the drugs from illegal sources.
In early 2011, the sole U.S. supplier of lethal injection agents announced it would no longer manufacture Pentothal (sodium thiopental), the anesthetic used by executioners to numb the pain of potassium chloride shutting down the heart. This came after Hospira discovered states were continuing to use the drug for lethal injection against the company’s wishes. This left the nation’s death rows without a supplier of lethal injection agents, and no other U.S.-based company seems to want or be able to seize the opportunity.
With inventory expiration dates inching closer, states began to look for alternatives outside the traditional sodium thiopental supply chain. After a scramble that included bartering among states and reportedly dipping into the Indian black market, a set of federal court decisions around the safety of questionably-sourced drugs spurred the Obama administration to step in. In 2011, the Drug Enforcement Administration seized stockpiles of sodium thiopental in several states, citing questions about how the drug was imported.
At hearings in Missouri held by the House Committee on Government Oversight and Accountability, the Director of the Department of Corrections testified that the state obtains its lethal injection drugs by sending a correctional official to another state with $11,000 in cash to pay a compounding pharmacy called The Apothecary Shoppe. The officer then hand delivers the drug to the department. At a legislative hearing on February 10, George Lombardi of the DOC said pentobarbital was obtained in Oklahoma by paying in cash in order to maintain the anonymity of the pharmacy. Another testifying attorney raised concerns that the drug would not be stored at the proper temperature in transport (the drug is supposed to be stored frozen).
What Now?
It looks like states now have a couple of options if lethal injection drugs cannot be obtained legally: do away with the death penalty altogether, or turn back to electrocution. In Tennessee, the General Assembly recently passed a bill that would add the electric chair as an alternative for correctional facilities running low on lethal injection drugs. The measure is now headed for approval from Governor Bill Haslam.
Bills have been proposed in Missouri to require execution protocols to be more open to public scrutiny (from which the Department of Corrections is currently exempt).
Legal expert Deborah Denno compared the states’ process of selecting an execution method to trying to figure out what to make for dinner. “It’s like going to your kitchen cupboard trying to look for something to prepare for your next meal and just looking for anything,” she said.
