Fordham Law

Future of executions in Alabama unclear due to drugs shortage

Deborah Denno in The Anniston Star, March 27, 2014

Media Source

Future of executions in Alabama unclear due to drugs shortage
by Tim Lockette

MONTGOMERY — Alabama has run out of a key drug in its lethal injection cocktail, and death penalty experts aren’t quite sure what the state will do to replace it.

“It’s very hard to predict,” said Fordham University law professor Deborah Denno, who has studied the death penalty for 20 years. “You’re shooting in the dark when there’s this much secrecy about the process.”

In an interview with the Associated Press earlier this week, the lead capital litigation attorney for the Alabama Attorney General’s Office confirmed that the state has run out of pentobarbital — a painkiller that is the first drug injected into death-row inmates’ veins during executions.

Death-penalty states are going to increasing lengths to get drugs used in lethal injection, after drug-makers — many of them in Europe — stopped supplying key execution drugs to departments of correction. Capital punishment is banned almost everywhere in Europe, and at least one American drug manufacturer has said it never intended for its products to be used in executions.

Alabama’s execution-drug shortage has come to light largely because of an effort to write the state’s policy of death-penalty secrecy into law. The Alabama House of Representatives has already passed a bill that would prohibit the release of the names of people conducting executions, as well as the identity of people or businesses who supply the drugs used in them.

The bill’s sponsor, Rep. Lynn Greer, R-Rogersville, has repeatedly said that information is not protected by state law now. For years, however, the Department of Corrections has resisted releasing it. Last week, the DOC denied requests from The Anniston Star, The Associated Press and the Montgomery Advertiser for information on execution-drug suppliers, citing a court-imposed gag order in a lawsuit brought by condemned inmate Thomas Arthur. Arthur’s lawyer has since said the gag order doesn’t apply to the information the newspapers have sought.

At least six other states have moved to make execution-drug information secret since 2011. Supporters of the push for secrecy say it protects the drug suppliers from harassment and lawsuits by death penalty opponents. A district judge in Oklahoma threw out that state’s secrecy law — one worded similarly to Greer’s bill — on Wednesday, according to the Associated Press.

Over the past two years, Alabama has executed prisoners with a dose of pentobarbital as a painkiller, followed by injections of pancuronium bromide and potassium chloride.

It’s not clear when the state’s pentobarbital ran out, or what the state might do to replace it. Statements by Crenshaw and Greer seem to indicate that the shortage has halted executions in the state. Richard Dieter, director of the Death Penalty Information Center, said other states seem to have found their way around the shortage.

“We’ve had 12 executions this year,” Dieter said, citing nationwide numbers. He noted that Texas, which has made headlines in recent months for its drug shortage, has recently found a drug supplier and executed someone last week.

Dieter said some states have turned to compounding pharmacies, which mix drugs in small batches, to make pentobarbital. Others, such as Florida and Ohio, have turned to the sedative midazolam.

Both approaches have their problems. An inmate in Ohio appeared to gasp for air during a 25-minute-long execution with midazolam last year, according to press accounts at the time. An Oklahoma inmate told authorities he felt his “whole body burning” after an injection with pentobarbital from a compounding pharmacy during an execution in Oklahoma.

Inmates have sued on the grounds that the new drug combinations constitute cruel and unusual punishment. Some say the suffering of victims’ families, as they wait for executions, is being ignored in the process.

“It’s just a technique that they’re using to avoid execution,” Janette Grantham, a member of Victims of Crime and Leniency, said of the legal challenges to execution drugs.

Grantham said everyone wants executions to be as humane as possible, but she also believes the times inmates spend on death row have grown absurdly long.

“People seem to think the victims are out for revenge,” she said. “We just want justice.”

Denno, the Fordham law professor, said there’s more to the current death-penalty chaos than just a shortage of drugs from Europe. A 2008 U.S. Supreme Court decision on a Kentucky inmate’s suit — in which justices’ opinions seemed to be splintered on many issues — left states without clear guidance on which lethal injection procedures are safe from a legal standpoint.

“Certainly Alabama is going to start looking at what other states do,” Denno said. But because states now use a patchwork of drugs and processes — any of which could be threatened by a new drug shortage — it’s hard to say which way the state will go, she said.

Denno said the issue is developing so fast now, in so many states, that it’s almost impossible to keep up.

“Any information that is a day old is out of date,” Denno said.

This weekend anti-death-penalty protesters plan to lobby at a meeting of the American Pharmacists Association, asking the group to write into its code of ethics a ban on participation in capital punishment.

“We’ll be handing out copies of other medical associations’ codes of ethics,” said Kelsey Kauffman, a member of the group SumOfUs, which is organizing the effort. Kauffman noted that the American Medical Association discourages doctors from participating in executions.

In an email, Pharmacists Association spokeswoman Michelle Spinnler said the association has met with Kauffman’s group. She said changing the code of ethics is a year-long process, and any changes would likely not be discussed until the group’s 2015 meeting. The group’s current code of ethics, she said, discourages the use of the word “drug” for execution chemicals, and supports a pharmacist’s right to refuse to participate in an execution.

Dieter, of the Death Penalty Information Center, said he thinks the push for more secrecy may hurt states in their search for execution drugs that pass constitutional muster.

“If the death penalty itself is constitutional, it may not have to be something that is pain-free or risk-free,” Dieter said. To get the courts’ approval, he said, states would merely have to show they did their best to find the most humane approach. That’s hard to do, he said, when the search is done without transparency.

“The secrecy is getting in the way of the states finding what they need,” Dieter said. “There’s a sense that something must be wrong if you’re keeping it secret. And the media will find out eventually anyway.”

Death penalty critic Bryan Stevenson, director of the Montgomery-based Equal Justice Initiative, said he couldn’t imagine how the state would find a humane drug.

“The whole process is so perverse, in my view, that it’s hard to see how they’ll solve their problem,” he said of the search for a new drug.

But whatever process the state decides to use, Stevenson said, that process shouldn’t be secret.

“This is one of the most serious things the state can do, to take the life of one of its citizens,” he said.