The cruelty of capital punishment is being played out grotesquely in the current crisis around lethal injection. Many states’ favored method of prisoner execution became imperiled when production of a key execution drug, sodium thiopental, came to a halt in 2011. Since then prisons have gone to great lengths to continue the executions, including experimenting with the three-drug cocktail. These exercises have led to numerous horror stories.
Humane Execution?
In recent US history, acceptable forms of execution have included, more or less chronologically: hanging, firing squad, electric chair, gas, and the currently acceptable method, lethal injection (see www.peacecouncil.net/pnl for a chart showing the date and method of every execution in the US). Each was successively considered too cruel, “inhumane,” and therefore unconstitutional. The constitutionality of the method of lethal injection for execution of prisoners (established by Baze v. Rees in 2008, though the practice has been in use since 1982) rests on the Eighth Amendment, the famed exhortation against “cruel and unusual” punishment.
The concern about the “humanity” of the method of capital punishment (if you can call any form of execution humane) brought us the three-drug lethal injection cocktail that all 32 death penalty states have on the books today. Dr. Jay Chapman was the medical examiner for an Oklahoma prison in the 1970s when he publicly expressed opposition to the use of the electric chair to execute prisoners. Chapman did not oppose the death penalty itself, but was reportedly disgusted by the accepted method of execution saying, “we kill animals more humanely.” He was challenged to suggest a better method and within just a few short weeks he invented the now ubiquitous three-drug protocol
His design included: 1) sodium thiopental, an anesthetic to make the prisoner unconscious and unable to feel pain, 2) pancuronium bromide, a paralytic, whose sole function appears to be to prevent any spasms that could result from the final drug and be uncomfortable for onlookers to see, and 3) potassium chloride, which stops the heart and kills the inmate. It’s interesting that only one of the three drugs actually serves the function of killing the prisoner: the others attempt to allay any moral concerns the executioners and those complicit may have about taking another human’s life.
New Drug Cocktails
But the current challenges to lethal injection aren’t coming from questions about whether it is a humane method of execution. In 2010, a North Carolina drug manufacturing plant owned by Hospira, the only plant in the US that produced sodium thiopental, came under investigation by the FDA for serious safety breaches. After more citations the same year, the FDA forced the plant to shut down. The company shifted operations away from North Carolina with plans to move the production of sodium thiopental to one of its locations in Italy. Italy, a country which is staunchly anti-death penalty, refused to grant the necessary permits to produce sodium thiopental, saying it could not guarantee the drug would not be used for capital punishment. Sodium thiopental officially went off the market in January 2011.
Prisons around the country responded in various ways. The most disturbing have been when states have decided to take the science into their own hands and experiment with other drugs that they think might work just as well as sodium thiopental. The first of these was pentobarbital, which was also quickly taken off the market (July 2011) because the company producing it did not support its use in executions and could not guarantee it would not be diverted for lethal use. Next was propofol in 2012 and then phenobarbital in 2013. The manufacturers of both placed restrictions on distribution of the drugs in order to prevent their use for lethal injections.
It is extremely important to note that pentobarbital, as well as other drugs that later replaced it, is not an anesthetic like sodium thiopental but a sedative. A sedative can make someone unconscious if administered in very heavy doses, but that is not its intended function as in the case of an anesthetic. (In 2014 Indiana announced its intention to use the anesthetic Brevital in its lethal injection protocol; Brevital’s producer issued a statement opposing this plan.)
The use of sedatives in place of anesthetics could explain the cases in which prisoners were visibly still conscious and even speaking as the execution proceeded. Numerous cases of this have been documented, including some in which the prisoner has exhibited great pain. In one tragically poignant case, an inmate, when asked for his last words prior to the execution, stated, “To my kids, I’ll always love you.” But contrary to his intentions, he spoke spontaneously as he was dying. His actual last words were, “I can feel my whole body burning.”
The Lonely Executioners
Our federal and state governments are seeking ways to continue executing prisoners at any cost. In addition to the drug experiments described above, Arizona illegally imported sodium thiopental from London after Hospira stopped producing the drug. In Texas a scandal ensued when a distributor sold a drug used in execution believing it was selling to a hospital, not a state prison. And it has become a disturbingly common practice for prisons to obtain lethal injection drugs mixed from compounding pharmacies, small operations that are intended to supply very small batches of medicine on a case-by-case basis.
More recently, on May 22, Tennessee’s governor authorized the use of the electric chair for execution in the case that lethal injection drugs were not available. Lawmakers in Wyoming and Missouri are considering bringing back the firing squad.
However, the day must come when the executioners realize they are alone in their desire to kill. The companies that design and produce the pharmaceuticals used in executions often publicly oppose such usage, and Italy has been joined by the entire EU in banning the export of drugs used in executions to the US. It does not matter the method: execution is not humane. No drug will make it otherwise. We must follow Europe’s lead and ban the death penalty in the US.
