Death penalty's future unclear: Public favors its use, but the obstacles are greatDeborah Denno in Chattanooga Times Free Press, February 16, 2014
Death penalty's future unclear: Public favors its use, but the obstacles are great
by Tyler Jett
Executing prisoners is getting more and more difficult.
State officials who want to enforce the death penalty struggle to find approved lethal injection drugs. Once they find those drugs, prisoners and their lawyers object to how they got them. And, when those state officials survive legal challenge after legal challenge, death penalty opponents object to what those drugs do -- not just that they kill, but specifically how they kill.
The general public still approves of the death penalty. But it's not as popular as it used to be. According to a Gallup poll released last year, 60 percent of Americans support the execution of inmates who have been sentenced to death. That's down from the peak of 80 percent in 1994 and the lowest level of support in more than 40 years.
And yet, Tennessee officials are preparing to enforce the death penalty more now than they have in decades. On Jan. 31, the Tennessee Supreme Court set execution dates for three inmates, and now the state is scheduled to put 10 death row prisoners to death in the next two years.
In the past 53 years, by comparison, Tennessee officials have executed a total of six inmates. If the state's plan goes off without a hitch -- if courts don't delay the deaths of these 10 men -- Tennessee will be executing inmates at its highest rate since 1943.
But the future of the death penalty in this country is unclear. Washington Gov. Jay Inslee announced Tuesday that he is suspending capital punishment in his state. He said the method is too arbitrary: One inmate is punished with death while another isn't for a similar crime.
Meanwhile, lawmakers in Missouri, Virginia and Wyoming proposed laws this year to take their states back decades, back to volts pulsating into chairs and men with guns aiming at the hearts of blindfolded inmates.
Legislators in Virginia and Wyoming have struck down their bills. But the Missouri bill to bring back firing squads has been referred to a committee and is awaiting a hearing. Its sponsor, Rep. Rick Brattin, said the bill is necessary because bullets may be the most humane weapon of execution.
A five-man squad of trained shooters, aiming from 20 feet away, can end a life faster and with less pain than most drugs, some studies show. And while Brattin said he supports lethal injection, getting those drugs has been too difficult.
"It's a mess," he said. "It's a huge issue."
In Tennessee, officials have not killed a death-row inmate since 2009.
But the state's problems began two years later.
Most states used to kill inmates with a three-drug "cocktail": The first drug put the inmate to sleep, the second paralyzed the inmate, and the third stopped the inmate's heart.
But death penalty opponents didn't like this method, Fordham law professor Deborah Denno said. If the first drug didn't work right, the inmate would be awake when he got the paralyzing drug. With an inmate awake but paralyzed, doctors would have no clue what was happening with the third, killing drug.
An inmate might be in cruel and unusual pain, but witnesses wouldn't be able to tell. The inmate would lie frozen, unable to squirm or scream through a slow, painful death.
So states changed. Now, instead of three drugs, most states use just one -- the first drug, the anesthetic that puts the inmate to sleep. Doctors just give more of it now, enough to halt the beat of a heart.
But getting that anesthetic has become a battle. In 2011, knowing these drugs would be used for executions, the European Commission banned companies in its jurisdiction from sending them to the United States.
Also in 2011, a supplier who made an anesthetic called pentobarbital stopped producing the drug in response to pressure from the Italian government. That same year, a Danish company called Lundbeck began requiring its customers to sign an agreement promising not to resell its pentobarbital to American prison systems.
So officials in several states -- including Georgia and Tennessee -- bought another anesthetic from a small company called Dream Pharma, which operates in London out of the back of a driving school. But death penalty opponents objected, the federal Drug Enforcement Administration seized states' supplies, and judges rules that those states could not buy this drug from Dream Pharma because it was not approved by the Food and Drug Administration.
These types of killing drugs must be approved, judges said. If there is something wrong with the drug, inmates could suffocate, have a heart attack or perhaps experience some other inhumane pain.
And so, states had to come up with a new way to get the necessary drugs.
As a result, many states have turned to compounding pharmacies, small-scale centers designed to make drugs for individuals. For example, if a customer needs a face cream but is allergic to an ingredient in the generic brand, a pharmacist at a compounding agency can make a custom cream that doesn't include that problem ingredient.
But federal agencies do not oversee compounding agencies; state governments do. Denno says this creates a conflict of interest: The state agencies that want to buy the drugs to kill death-row inmates also have to regulate the pharmacies where they buy the drugs.
Also, because of the lack of federal regulation, some drugs from compounding agencies have backfired. In 2012, for example, the U.S. Centers for Disease Control and Prevention concluded that the New England Compounding Center sent tainted steroids throughout the country, causing a meningitis outbreak. More than 700 people got sick and more than 60 died, including 16 from Tennessee.
Kelley Henry, a federal public defender who represents four of the 10 Tennessee inmates set to die, has filed a lawsuit in Davidson County Chancery Court challenging Tennessee's use of compounding pharmacies for lethal injection drugs.
"Tennesseans know full well the danger of using compounded drugs," Henry said in an email. "These pharmacies have come under great scrutiny. The very real risk of a subpotent drug could lead to a suffocating, lingering death or even a person being declared dead by a doctor when death has not actually occurred."
Lethal injection drugs have only been under more scrutiny given a couple recent cases across the country. On Jan. 10, an Oklahoma inmate named Michael Lee Wilson was put to death.
His last words were, "I feel my whole body burning."
A week later, an Ohio inmate named Dennis McGuire needed 15 minutes to die. He gasped over and over and shook his body in those final minutes, according to some witness accounts. Others who saw him die say this is an overdramatic account.
Despite these concerns, many states are able to buy death penalty drugs in secret. Last year, legislators in Georgia and Tennessee both overwhelmingly passed bills banning the public from getting access to information about where government officials buy lethal injection drugs.
Rep. Gerald McCormick, R-Chattanooga, the sponsor for last year's House bill in Tennessee, said the state can't buy these drugs if the supplier is not a secret. Companies and pharmacists don't want the public to know they are selling drugs to kill people, even convicted murderers.
"The people support it," he said of the death penalty. "We just have to do it in a constitutional fashion That's what we're trying to do."
But some opponents of the law say this method is not constitutional. If the government is buying drugs with taxpayer money, those taxpayers have a right to know how much the government paid for those drugs, and where they got them.
Last week, Missouri legislators revealed during a committee hearing that state officials paid $8,000 for drugs from an Oklahoma compounding pharmacy.
"If a state is making a bridge, you want to know who is making the bridge and how the bridges are going to collapse," said Richard Dieter, director of the Washington-based Death Penalty Information Center. "You can't say, 'Well, that is going to embarrass the bolt maker.'"
Sen. Douglas Henry, D-Nashville, said hiding the drug supplier's identity is a First Amendment violation. Henry is one of five Democrats who opposed the bill (it passed 29-2 in the Senate and 92-3 in the House. Both chambers are controlled by Republicans).
"Whatever the state does ought to be made known to the public," he said. "That's just basic government."
Henry is an opponent of the death penalty. He said the risk of killing a wrongfully convicted inmate is too great.
For his part, McCormick said Henry's fears are legitimate. Citizens might deserve to know where the state gets its drugs, and how much it pays. Also, McCormick said, death-row inmates might deserve to know who is making the drugs that will be used to execute them.
The process weighs heavy on him, all of it.
"There's no good way to do this," he said. "It's a painful process for everyone involved. But it's going to be done."