Update on Capital Punishment

Here’s an update on the practice of capital punishment in the US.

The objection of European Union and American drug companies to the use of the anesthetic sodium thiopental for capital punishment has caused a scramble for new means of killing people “cleanly.” The 3-drug protocol (usually sodium thiopental, the muscle paralytic pancuronium bromide and the heart-stopping potassium chloride,) was the most common technique for capital punishment in the US until 2010. The problem is that sodium thiopental is a commonly used anesthetic. Hospira, the only US company that manufactured the drug, was unable to assure authorities at the manufacturing site in Italy that the drug would not be used for capital punishment, so it stopped production in 2011. As supplies dwindled, last-minute sources were tried, one being a British company called Dream Pharma, run from a driving school in west London, but eventually these sources too were shut down. 

Oklahoma was the first of several states to switch to pentobarbital, a drug commonly used for euthanasia by veterinarians, and sometimes used for physician assisted suicide in Oregon. Pentobarbital is made by the Danish company Lundbeck, which rapidly ran into the same legal and ethical objections raised against the use of sodium thiopental. Even when Lundbeck sold manufacturing rights to Texas-based Akorn, Inc., they did so stipulating that they would follow the same distribution restrictions that Lundbeck had--no pentobarbital for executions. 

What's an executioner to do? 

Other drug combinations are being tried, such as midazolam, a benzodiazepine sedative, substituted for thiopental in the standard 3-drug mix. Last October this experimental combination was tried in Florida, where the Department of Corrections says everything went fine, while Slate's Justin Peters says:

Many observers worried that the untested midazolam might wear off before the other drugs took effect, thus subjecting Happ to excruciating pain. Sure enough, the Associated Press reported that Happ apparently “remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection under the old formula.”

Or you could try midazolam with hydromorphone, a narcotic. This combination was used to kill Dennis McGuire in Ohio last week, a process that took 24 minutes. McGuire appeared to gasp for air for 10-13 minutes before he died. David Waisel, associate professor of anaesthesia at Harvard medical school and on McGuire's defense team, had warned against the particular protocol used: 

Waisel warned the court its proposed dose of midazolam was too low to induce anaesthesia. He also said the two drugs would take several minutes to kick in, leaving McGuire aware of what was happening while at the same time suppressing his breathing and giving him the sensation that he was suffocating, an experience known as “air hunger”.

Laurence Lewis at the Daily Kos said it well: "Ohio tortures a man to death." 

Another option is to turn to compounding pharmacies. These are less regulated than other pharmacies, and vary in quality from excellent to, well, just google "compounding pharmacies" and "contaminated." And of course, many compounding pharmacies aren't all that eager to be associated with killing people, either. In Texas, the Department of Criminal Justice is accused of falsifying prescriptions to get pentobarbital for executions. 

The suit against Texas alleges the state corrections department falsified a prescription for pentobarbital, including the patient name as "James Jones," the warden of the Huntsville Unit "where executions take place," according to court documents. Additionally, the drugs were to be sent to "Huntsville Unit Hospital," which, the documents say, "has not existed since 1983."
The suit said the pharmacy was unaware of the purpose for the order and when it found out it canceled the order before it was filled.

Or at least it didn't want word to get out:

In a letter obtained by CNN, dated October 4 of this year, Woodlands Compounding Pharmacy, which was requested to provide drugs to Texas officials says it believed its "information would be kept on the 'down low'" by the TDCJ."

The Missouri Department of Corrections apparently took its business illegally out of state:

The manufacturer’s reluctance led Missouri prison officials to buy the necessary drug from an out-of-state compounding pharmacy that wasn’t licensed to do business in Missouri, prompting lawmakers to investigate the state’s execution method.

By 2013, at least six states had obtained compounded pentobarbital, and Joseph Paul Franklin was executed in Missouri in November with this drug.

With compounding pharmacies providing execution drugs illegally or "on the down low," it's hard to say how humane the killings will be--they'll likely have the same range as compounding pharmacies, from reliable and humane to--who knows?

Jim Salter writes for the AP:

[Compounded] pentobarbital was used in an execution on Jan. 9 in Oklahoma, where inmate Michael Lee Wilson’s final words were, “I feel my whole body burning.”

The purpose of killing killers by injection was to make their deaths humane, or at least as humane as scheduled, state-run killing can be. As Maya Foa from Reprieve told the BBC News, states are reluctant to go back to older methods like hanging or electrocution:

"There's a sort of medical veil pulled over executions which prisons and states which are pro capital punishment like, they need that to hide the reality of what is actually a barbaric practice.

I think they would be unlikely to go back to hanging or electrocution because that forces the public to witness the reality of putting a man to death and that's something that actually repels a lot of people and would increase the anti-capital punishment sentiment out there and that's a risk I think that prisons and states are unwilling to take.

And there's always shooting, which can certainly be done humanely if done correctly, unlike (apparently) some of the experimental drug cocktails used to kill people now. 

There are a number of good arguments against capital punishment: its unjust application (overwhelmingly we kill poor people and people who kill white people), its high cost (at least as long as we care enough not to kill the innocent that we allow a long appeal process), the inescapable risk of killing the innocent, and others. But another major issue is that we as a society risk being made more callous as a result. We respond to the complexities of crime and punishment with a simple solution—lock ‘em up, and if they’re bad enough, kill ‘em all. We are the world’s leader in incarceration rate per capita, and now that the privately run, for-profit prison business is booming, that will add another motive to respond to wrong-doing with imprisonment. We are on a short list of nations who still kill in the name of the state. Murderers, we say, deserve to be killed, and why should we show them any more mercy than they showed their victims?

But that's not the point. The point is that this is what the state does in OUR name. With most pharmacies and drug companies unwilling to cooperate, the processes and procedures have come to look more and more like botched drug deals or bungled chemistry experiments. Humaneness seems to have taken a back seat to this medicalization of killing in fact, if not in theory. Is that how we want to treat people? Even the heartless killers among us?

Lisa Fullam is professor of moral theology at the Jesuit School of Theology at Berkeley. She is the author of The Virtue of Humility: A Thomistic Apologetic (Edwin Mellen Press).

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