Fordham Law


The recent history of states scrambling to keep using lethal injections

Deborah Denno in The Washington Post, February 19, 2014

Media Source

The recent history of states scrambling to keep using lethal injections
 
By Mark Berman
 
Dennis McGuire, the first person executed by the state of Ohio this year, took nearly 25 minutes to die. McGuire, who admitted to raping and murdering a pregnant newlywed named Joy Stewart in 1989, struggled, gasped and choked for several minutes before he was pronounced dead.
He had been given a combination of drugs that had not been used before in the U.S., because Ohio ran out of the drug it had used for executions and the state had to use the backup combination outlined in the Department of Rehabilitation and Correction’s policy.
Ohio ran out because of European objections to the death penalty. McGuire’s execution, which drew widespread media attention, was the latest example of an ongoing issue: Lethal injection, the primary method of execution in the U.S., has been fraught in recent years with drug shortages and a host of related problems.
 
“In 2014, we have a far riskier, more haphazard lethal injection procedure than we ever have had throughout the country,” said Deborah W. Denno, a death penalty expert and a professor at Fordham Law School.
Until very recently, most executions in the U.S. relied on a simple formula. A three-drug combination that used an anesthetic, a paralytic drug and a drug that stopped the heart was overwhelmingly used until 2010, according to the Death Penalty Information Center.
There were 52 people executed across the country in 2009, all but two of them killed with a three-drug combination that included the anesthetic sodium thiopental. One person that year chose the electric chair over lethal injection, while another person, Kenneth Biros, became the first person executed with a single drug (just sodium thiopental) rather than the three-drug injection. Ohio opted to go the single-drug route with Biros after Romell Broom’s botched execution in the state earlier that year. (Broom, who survived his execution attempt, remains on death row).
The following year, the U.S. executed 46 people, most of them using the three-drug combination, though several people were also executed using only sodium thiopental.
But in 2011, Hospira, the sole manufacturer of the drug, announced that it would “exit the sodium thiopental market” since the Illinois-based company couldn’t guarantee it would no longer be used for a lethal injection. The company had initially planned to make more of the drug at a plant in Italy, but Italian officials would not allow the export of the drug if it was going to be used for capital punishment.
So many states switched to using pentobarbital, the drug that has cropped up the most often in executions carried out since 2011. But Lundbeck, the Danish company that had supplied the drug, protested the use of pentobarbital in executions and said it would no longer ship it to prisons in U.S. states that use lethal injection.
That’s “where the real scrambling begins,” Denno said. States have tried to find other ways to carry out executions.
Some, like Ohio, ran out of pentobarbital and had to figure out other drugs to use. Others have had to look elsewhere for the drugs, only to be rebuffed. A German company behind propofol, the anesthetic known to many after Michael Jackson’s death, said in 2012 it wouldn’t allow it to be sold for use in an execution. Missouri had planned to use propofol in an execution, which would have been a first, but that was halted last fall.

A compounding pharmacy in Oklahoma said this week it wouldn’t provide the drugs needed to execute someone in Missouri.
With uncertainty about getting the drugs and legal fights, some states have mulled reviving options like the firing squad (Wyoming), the gas chamber (Missouri) and the electric chair (Virginia).
The European objections stem from the European Union’s opposition to the death penalty, which means Europe is effectively responsible for the shortage of execution drugs. As a result, states are experimenting, Denno said.
“Despite all the litigation that has occurred…lethal injection has never been riskier or more problematic than it has been within the last four or five years, because of the drug shortages,” Denno said.
Drug shortages are a widespread issue, according to the Government Accountability Office. The GAO posted a report last week noting that that the number of drug shortages during a given year has increased since 2007.
Still, executions continue in the U.S. Eight people have been executed so far this year, all through lethal injection. And the first four executions were carried out using four different combinations of drugs.
“That certainly smacks of an experiment,” said Richard C. Dieter, executive director of the Death Penalty Information Center.
Lethal injection was first adopted by Oklahoma in 1977, though it was Texas that first executed someone that way five years later. It eventually became the primary method of execution, but some states still allow for electrocution, hanging and death by firing squad (Utah last killed someone this way in 2010).
There are 32 states that have the death penalty, a number that has declined in recent years. Six of the 18 states that don’t have the death penalty have abolished it since 2007, most recently Maryland last year.
Others still are opting to stop executions entirely. Washington Gov. Jay Inslee (D) announced last week a moratorium on carrying out the death penalty.
A majority of Americans still support the death penalty, with 60 percent saying they favored capital punishment for convicted murderers in a Gallup poll last year. But that number is on the decline. That’s the lowest level of support Gallup found since 1972, when 57 percent of Americans supported the death penalty; the numbers have dipped from 65 percent in 2009 and significantly fell from the 80 percent support measured in 1994.
This decline has to do less with the recent lethal injection issues and more with “revelations about mistakes” and wrongful convictions, among other things, Dieter said.
“People were freed through DNA,” he said. “This was something from the outside that exposed the fallibility of the system.”
The result, Dieter said, is that the death penalty is used less. The number of executions declined last year to 39 from 65 a decade earlier, and more than half of the executions occurred in just two states: Texas and Florida. (The number of death sentences also fell to 80 last year from 152 in 2003.)
“The death penalty has become less relevant,” he said. “For most of the country, it’s just not used enough to be a regular part of the criminal justice system.”