Article: US Executions Getting Worse

(Article changed on February 1, 2014 at 11:38)

By Martha Rosenberg and Robert Wilbur

This week a third inmate died by lethal injection in Missouri in as many months. Herbert Smulls, convicted of a 1991 murder, was executed late Wednesday night, after the Supreme Court denied his last-minute appeal. Smulls' attorneys challenged Missouri's refusal to disclose the compounding pharmacy where it got the lethal injection drug, pentobarbital. Compounding pharmacies are not regulated by the federal government, charged the lawyers and the Missouri facility was linked to a 2012 meningitis outbreak that killed dozens and sickened 700. Two days before the execution, federal district judge Beth Phillips in Kansas City ruled that questions about the drug were not enough to prove that it would cause "needless suffering."

Public sentiment is turning against the death penalty
(Image by Martha Rosenberg) Details DMCA

Earlier in January, the protracted execution of Dennis McGuire at the Southern Ohio Correctional Facility outside of Lucasville also raised questions about lethal injection and whether it is a more humane way of death after all. Under the administration of an untested lethal drug combination, McGuire emitted disturbing sounds suggesting a painful, drawn out suffocation.

The number of US executions is declining according to Death Penalty Information Center as are the number of states which impose them. But questions about the justness of the death penalty are growing as death row inmates continue to be found innocent, racial disparities and questions of mental competency continue to surface and lethal injection is questioned as a humane death method. "It is bad enough that the death penalty is barbaric, racist and arbitrary in its application, but it is also becoming less transparent as the dwindling number of death-penalty states work to hide the means by which they kill people," wrote the New York Times in an editorial.

Lethal injection has largely replaced electrocution. Deborah W. Denno, Professor of Law at Fordham University School of Law, has been a leading opponent of death by electrocution since the 1990s, asserting it violates the Eighth Amendment's prohibition again "cruel and unusual" punishment. "There's substantial evidence that suggests electrocution results in a high risk of pain and prolonged suffering," Denno told the Sun-Sentinel.

"Can people say that for an absolute certainty? No. You can't interview a dead person. But when the other side comes back and says there's no evidence of that, that these people die instantaneously, they're being dishonest."

But increasingly lethal drugs are looking as just cruel as electrocution, Denno says, because of "grossly inadequate" protocols about which drug are administered, how, by whom and in what quantities and the clandestine nature of lethal injections. (States need to "take their execution procedures out of hiding," she wrote in a 2007 Fordham Law Review article.) Denno is also concerned about the new and untested drugs used in lethal injections. "We don't know how these drugs are going to react because they've never been used to kill someone," she told Mother Jones.

The electric chair has a ghoulish history from its invention by employees of Thomas Edison to grisly mishaps like Willie Francis who failed to die in 1946 and had to take the "long walk" twice to Pedro Medina whose face mask burst into flames in 1997. Yet lethal injection, also called Carson's Cocktail after the Oklahoma pathologist who concocted the original formulation, is also prone to mishaps like the 2007 case in which guards failed to find a vein and sobbing inmate Romell Broom lay was asked to find his own vein. (The "self-execution" still failed and Broom will also made the long walk twice.)

What happened to Broom is to be expected. Even though it takes a skilled nurse or hemophylist to insert catheters snugly, so that the fluid doesn't leak or the catheters come loose by the writhing of a distraught prisoner, this complex medical responsibility is assigned to prison guards who spend most of their days pacing the corridors twirling a truncheon. After the guards have marched the prisoner to the homey little room with three walls and a glass window with a drape and strapped him to the death gurney, the search for big veins to insert the catheters starts--and guards have been known to bumble and fumble for hours, sometimes cutting open the veins

with a knife or scalpel, before the warden calls a halt to the evening's proceedings.

The Carson Cocktail consists of three drugs: a short-acting barbiturate to knock the condemned person out (originally thiopental); a neuromuscular blocking agent to paralyze the skeletal muscles, including the muscles of breathing (pancuronium bromide); and an agent that stops the heart (potassium chloride).

Right after the thiopental infusion, pancuronium bromide is administered a curare type agent that paralyses the skeletal and breathing muscles. Theoretically, the condemned is now soundly asleep and prepared to die, thanks to the upcoming infusion of potassium chloride, a drug that stops the heart. Key word theoretically. If the dose of thiopental is inadequate, the execution will go wrong in a horrific way: potassium chloride causes agonizing pain, but there is no way for the condemned to convey this because all his muscles, even speech, are paralyzed.

Since the manufacturer of sodium thiopental ceased production under pressure from the government in Italy, where its plant is based, other European manufacturers also refuse to provide thiopental because of a European Union statute prohibiting the export of any product that might be used in capital punishment.

Last fall, convicted murderer William Happ was executed in Florida with the sedative midazolam to replace thiopental, a drug "that causes memory loss and relaxation, but not necessarily unconsciousness," according to the Week. It took 14 minutes to kill Happ rather than the planned seven and "his head shook throughout, and his eyes remained open until the 10th minute." When Ohio planned to use midazolam along with the painkiller hydromorphone to execute Dennis McGuire the Associated Press echoed Denno's concerns. "No state has put a prisoner to death with those drugs in any fashion," said the AP.

Other states, like Missouri, are pursuing the animal anesthetic pentobarbital to replace thiopental only available through the controversial compounding pharmacies. Texas's Department of Criminal Justice "allegedly submitted a falsified prescription to one compounding company, Pharmacy Innovations, ostensibly for patient 'James Jones'-- actually the warden of the Huntsville Unit, which houses the execution chamber," says the Week. "Other states have bought lethal injection drugs with petty cash or individual employees' credit cards." In some states, lawmakers frustrated with red tape over lethal injections, have suggested bringing back as the firing squad and electrocution. Where there's a will there's a way!

National Public Radio says the state of Missouri has "fought hard to keep the identity of compounding pharmacy a secret, restricting public oversight, and making it difficult to know if the execution method is both legal and ethical."

Of course, a US execution is already secretive. After the prisoner is strapped down and the needles inserted, the drape is closed and the audience only sees the supine prisoner with long tubes running from his arm to a hole in the wall. The warden and chief executioner who "work" the chemical from the other side of the wall are never seen. Sometimes there are not even witnesses.

But now secrecy extends to "Individuals who prescribe, compound, prepare, or otherwise supply the chemicals for use in the lethal injection procedure," charges National Public Radio. "It's just a shroud of secrecy to try to prevent criticism and skepticism from the public," agrees American Civil Liberties Union of Missouri legal director Tony Rothert. "I think the First Amendment gives the public the right to know who the execution team is, and to question whether or not they're qualified."

And speaking of secrecy, few are even aware of another execution that took place in January. Michael Lee Wilson, 38, convicted of a 1995 murder, was put to death on January 9 by lethal injection in Oklahoma.