No Drugs, No Executions: The End of the Death PenaltyDeborah W. Denno in The National Journal, October 28, 2013
On Oct. 15, Florida executed William Happ, a man who most agreed deserved little sympathy. Happ kidnapped 21-year-old Angela Crowley in 1986 from outside a convenience store in Crystal River and raped and strangled her before dumping her tormented body into the Cross Florida Barge Canal. Three years later he was convicted of rape and murder and sentenced to death.
Happ's execution lasted 14 minutes before he was pronounced dead—double the time typically expected when pentobarbital, the executioner's drug of choice for years, was used. He "remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection," according to Associated Press reports.
Happ died for his crimes committed 27 years ago. Like hundreds before him, Happ's death was administered through an intravenous injection of a lethal drug cocktail.
Like no one before him, Happ was injected with midazolam hydrochloride, a sedative that had never before been used for an execution in the United States.
Happ's execution reflects an American death-penalty system in crisis: States are running out of the drugs they rely on to carry out death sentences as alternatives for how to secure them quickly diminish. And no one wants to innovate in the execution industry. As the medical community works to distance itself from the science of killing people, states are attempting to forge a difficult road ahead, one fraught with litigation, international tension, and uncertainty.
Race to the Bottom
Florida's new drug of choice replaced pentobarbital, a barbiturate the state used for years as part of its three-drug lethal cocktail until de facto boycotts by foreign drug manufacturers exhausted its supply. Midazolam hydrochloride, marketed as Versed, was chosen not because of its effectiveness but because of its availability, a decision legal experts say calls into question Florida's commitment to the Eighth Amendment's promise of no infliction of cruel or unusual punishment.
Florida is just one of several states scrambling to update or refine its capital-punishment protocol amid a sudden shortfall of its lethal injection drugs, resulting in an unprecedented inconsistency in the way inmates are executed in the United States. Even as a steady majority continues supporting the death penalty, the difficulty in obtaining new lethal drugs, associated legal hurdles, and a gaping void of better execution alternatives has left capital punishment in America with an uncertain future.
Distilling the amount of pain Happ endured is nearly impossible because the second drug in Florida's three-drug cocktail, vecuronium bromide, acts as a paralytic agent. Its purpose is largely cosmetic, effectively masking how much pain the subject may be enduring.
"We don't even know if the new drug (midazolam) is working or not," said Richard Dieter, the executive director of the Death Penalty Information Center. "Everything is a bit of an experiment with a human subject. If this were ordinary medicine, that would not be allowed, but this is the death penalty and that's how it goes."
"If this were ordinary medicine, that would not be allowed, but this is the death penalty and that's how it goes."
In a letter to Florida Gov. Rick Scott last month describing the changes to its lethal-injection protocol, Florida Department of Corrections Secretary Mike Crews wrote that "the procedure has been reviewed and is compatible with evolving standards of decency that mark the progress of a maturing society, the concepts of the dignity of man, and advances in science, research, pharmacology, and technology. He added: "The process will not involve unnecessary lingering or the unnecessary or wanton infliction of pain and suffering. The foremost objective of the lethal injection process is a human and dignified death."
A department spokeswoman confirmed the switch was made because Florida's cache of pentobarbital expired. She declined to give specifics about how the updated lethal-injection process was vetted to ensure it qualifies as "a humane and dignified death."
"The department is not going to go into any detail about how or why the protocol was designed," Misty Cash, the spokeswoman, told National Journal. "Those decisions are exempt from public record because they could impact the safety and security of inmates and officers who are involved in that process."
Florida's refusal to disclose its process for selecting its new drug bolsters critics who claim it and other states are willing to risk violating generally accepted standards of decency in their pursuit of a reliable method of execution.
"Every time a state changes their method of execution, they lose credibility about a procedure that should be as humane as we can make it. Everything that states are doing now goes against that very grain," said Deborah Denno, a capital-punishment expert who opposes the death penalty. "They choose drugs because they are available, not because they know anything about those drugs."
Texas's changes to its lethal-injection protocol illustrates that reality. When the state first adopted lethal injection as a method of execution in 1982, a three-drug sequence consisting of sodium thiopental, pancuronium bromide, and potassium chloride was deployed. In March 2011, the state replaced sodium thiopental with pentobarbital because the state encountered difficulty procuring the old drug, according to Texas Department of Criminal Justice spokesman Jason Clark. A year later, the department again modified its execution protocol, this time from a three-drug sequence to just one drug: a lethal dose of pentobarbital, a drug more commonly used to euthanize pets.
This change, like the first, occurred because "the agency's stock of [pancuronium bromide] expired and the agency was unable to obtain a new shipment," Clark said.
In Ohio, pentobarbital remains the "primary method of intravenous execution," but the state updated its execution policy in October to allow for a combination of midazolam and hydromorphone to be used instead. The state says its supply of pentobarbital has expired, and with no way to easily restock, the backup method is likely to become the new normal. When asked how Ohio settled on its backup choice, an official said the state "reviewed all available information from other states, and considered all available options" but did not provide further detail.
Eight days after Florida executed Happ, Missouri planned to put Allen Nicklasson to death with propofol. The anesthetic, which contributed to Michael Jackson's death by overdose in 2009, had also never been used before for a human execution. But buckling from pressure from the medical community, which argued propofol could inflict inhumane levels of pain, Gov. Jay Nixon halted Nicklasson's execution to ensure "justice is served and public health is protected." But a more practical matter was likely weighing on Nixon's mind: German manufacturer Fresenius Kabi had threatened to stop shipping propofol to the U.S. if the drug was allowed to be used for executions.
A Solution or Another Stopgap Effort?
As some states zig and others zag to keep their executions from being interrupted, elsewhere, in unsuspecting places, exasperated politicians are publicly questioning whether capital punishment is worth the growing avalanche of legal and practical headaches. In Arkansas, a state with a rich history of executions (Bill Clinton famously flew home from campaigning in 1992 to preside over Ricky Ray Rector's execution), Gov. Mike Beebe, a moderate Democrat, said earlier this year that he would sign a bill ending the state's death penalty if it came to his desk.
Attorney General Dustin McDaniel, also a Democrat, has been even more forceful. Though he supports capital punishment in principle, McDaniel has begun publicly scrutinizing the practice. Due in part to the difficulty in obtaining the necessary drugs—and a bevy of related legal challenges—his state has not carried out an execution since 2005 despite having nearly 40 prisoners on death row.
"I can no more flap my arms and fly across the state than I can carry out an execution."
"Our system is completely broken, and I don't know how to say it more bluntly than that," McDaniel told National Journal. "It's a complete impossibility. I can no more flap my arms and fly across the state than I can carry out an execution."
Doctors and researchers aren't exactly clamoring to develop new methods of killing people, and no one is advocating a regression to older forms of execution, like the electric chair or gas chamber. But even if a new, cutting-edge technique was developed somewhere, that too would almost certainly provoke a torrent of litigation.
"Let's say that there was magically a vapor, a mist, a pill, a fatal hypnotic stare. You still have to find American manufacturers who are willing to produce it and courts who are willing to accept it," McDaniel said. "I don't see any of that happening. It's science fiction and legal fiction."
McDaniel said he has considered turning to compounding pharmacies—where products are chemically crafted to fit an individual person's needs—within the state to produce lethal-injection cocktails as "the only remaining option." But despite successes found in Georgia, South Dakota, and Texas, McDaniel predicts that "there is no way a compounding pharmacy will pass the litigation muster."
Already, compounding pharmacies have proven to be a difficult path to forge. Texas restocked its supply of pentobarbital by turning to a pharmacy in suburban Houston, which was publicly identified through a Freedom of Information request made by the Associated Press earlier this month. The "outed" pharmacy then demanded Texas return its drugs, which the state refused. Meanwhile, three inmates on death row are suing the state on grounds the drugs could cause cruel and unusual punishment, as their production is secretive and beyond the regulatory purview of the Food and Drug Administration.
Missouri, hard up after deciding to forgo using the anesthetic Michael Jackson overdosed on, announced last week that it, too, had settled on compounding pharmacies to produce pentobarbital.
Three bills—one in the Senate, two in the House of Representatives—dealing with regulatory oversight of compounding pharmacies have earned committee consideration this year. Such legislation is likely to restrict a state's ability to rely on compounding pharmacies for its lethal drugs because they would force more transparency, tighten prescription requirements and expose physicians to liability.
Lethal injection states are stuck, and quickly running out of places to turn to secure the ingredients needed to execute a growing backlog of prisoners on death row. Medical practitioners and pharmaceutical companies are in the business of saving lives, not helping to end them, and are increasingly unwilling to have their name associated to the practice.
Advocates like Denno see this rising tension as an unexpected boon for their cause, something that is succeeding where more-conventional methods—Eighth Amendment lawsuits, innocence projects, and demonstrations of racial and socioeconomic bias—have failed.
"The drug shortage and what caused it and what perpetuates it and what results from it has nothing to do with the execution process in this country. Nonetheless, it may be the factor that ends up finally abolishing the death penalty," she said. "And it's an irony because it's nothing any death-penalty litigator could have hoped for."
Capital punishment in America is not going to disappear overnight. But an executioner stripped of his tools is as good as a toothless shark.
"When the death penalty goes, it's not just going to be, well, we couldn't figure out a way to kill people," DPIC's Dieter said. But "it's one more straw on the camel's back."