Should states be required to disclose which drugs they use to kill people sentenced to the death penalty? In July 2014, the 9^th Circuit Court said, “Yes,” while, in a separate case, the U.S. Supreme Court said, “No.” That judicial disagreement is complicating recently instituted death-penalty procedures, in which states use new combinations of death-inducing drugs—but are reluctant to reveal the sources of those drugs.

In the court of my opinion, however, the answer is, “Yes—states should be required to reveal the composition of their death cocktails and their sources.”

The states involved in these two most recent cases are Arizona and Texas, who along with Missouri, are currently the most active of the 32  death-penalty states in the U.S. The states argue that, under current law, it is their legal duty to carry out the death penalty, and they do not want to be hampered by new rules. For people like me, who oppose the notion that a state has the right to kill someone—no matter how awful the crime he/she has committed—the issue of drug disclosure may represent a way to finally put the death penalty to death in this country.

Here’s how that might happen: As we’ve seen recently, several manufacturers of drugs that have previously been used for executions have stopped selling their products to state prison systems. The manufacturers—who want their drugs to be seen as helpful, curative and life-saving—don’t want them associated with the death penalty and death. Several of these drug companies are based in Europe, where the death penalty is considered anathema. (Countries that employ the death penalty cannot become members of the European Union.) Even US manufacturers are showing reluctance to allow their drugs to be used for executions. And for good reason: Have you seen the proliferation of recent news reports about the protracted deaths associated with some of the newly improvised death-drug cocktails?

The result has been that states have had to scramble for new death-inducing drug combos. They’ve moved on to other drugs—some of them generally used in veterinary care—and other deadly combinations not routinely prescribed for use together. Several states—unable to obtain the preferred execution drugs from manufacturers—are now getting their supplies from compounding pharmacies, who mix up small amounts of the drugs using the same components that a manufacturer would use. In many cases, states do not reveal the names of the compounding pharmacies.

The reason behind this secrecy is obvious: If the names of the new combinations and sources were made public, there could be negative publicity, driving more pharmacies and manufacturers to ban their products from use in executions. And then what would state prison systems do? Revert to the gas chamber? Firing squads? The guillotine? It’s hard to imagine a state wanting to go back to methods viewed as archaic and barbaric. In fact, most don’t want anyone to see much of anything associated with the death penalty: That’s why executions are usually carried out in the middle of the night; and why the identities of the executioners are kept private; and why witnesses to executions are often curtained off at the moment of the injection and don’t see the prisoner die.

So, it’s possible that full disclosure could make the death-penalty so difficult for state prison systems that they would have to abandon it. We’d have a market solution [a manufacturers’ boycott] to a moral issue, and the U.S. would at long last join the rest of the industrialized world in ending the death penalty. I’d even be okay if free-market Reppublicans took credit for that development. Whatever it takes.

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Just a few hours before convicted serial murderer Joseph Paul Franklin was scheduled to be executed by lethal injection on Nov. 19, 2013, two federal judges granted a stay. Then that stay was reversed by the U.S. Supreme Court. And then Franklin was executed.

But, even though the eventual outcome—another state-sponsored execution—was a defeat for those of us who oppose capital punishment—the controversy surrounding the case gives us a glimmer of hope that new concerns about lethal-injection drugs might lead to the eventual end of the death penalty in the U.S.

Missouri’s rush to execution

In the run-up to Franklin’s execution, Missouri—under legal, medical and international pressure—had to scramble to find a way to make it happen.  Franklin was the first Missouri inmate scheduled to be put to death under the state’s newly minted execution protocol. According to Yahoo News:

In October 2013, the state changed its rules to allow for a compounded pentobarbital—a short-acting barbiturate—to be used in a lethal dose for executions.

Missouri was forced to change its prescribed death drug because the German company that manufacturers propofol—the drug Missouri had planned to use—objected to its use in executions.

More specifically, earlier this year, Missouri sent back a shipment of propofol that it had planned to use for executions.

Fresenius Kabi, by far the largest supplier of  Propofol to the US, instructed its distributors last August not to ship the drug to any departments of corrections in the country after several states said they planned to use it for lethal injection. But the Louisiana-based distribution company, Morris & Dickson LLC, sent the shipment to the Missouri Department of Corrections by mistake.

“We learned about such plans of certain states in the US to use Propofol for executions last year. And this was when we implemented tighter distribution controls,” said Matthias Link, a spokesman for Fresenius Kabi. The company’s concern is that Propofol, if used for executions, could be placed on the EU’s list of export restricted substances under the so-called Torture Regulation, which would then severely restrict US access to the popular drug. [Propofol is the most widely used surgical anesthetic in the U.S., with an estimated 50 million dosages per year.]  Capital punishment is illegal throughout the EU.

Were Propofol to be classified under the Torture Regulation, Link explained, it would mean layers of added bureaucracy and three to six month waiting periods for every shipment. “Any executions with Propofol would lead to an extreme shortage,” he concludes.

It seems absurd, of course, that Missouri was in such a hurry to find a way to kill someone—even someone as awful as Franklin, a serial killer. Still, it’s hard to imagine a more ludicrous and horrifying scenario than that of a state desperately scurrying about for an acceptable way to kill people.

But that’s the insane state that the state of Missouri—along with 32 other death-penalty states—is in. Missouri’s frantic quest for a better death-inducing drug brought it to pentobaritol—an anesthetic widely used in euthanizing animals, but previously untried in human death penalty protocols.

And it was precisely Missouri’s hurry that impelled U.S. District Judge Nanette Laughrey to issue the last-minute stay of execution for Franklin. In her ruling, she noted that:

Missouri issued three different protocols in the three months preceding Franklin’s execution date and as recently as five days before.

Franklin has been afforded no time to research the risk of pain associated with the department’s new protocol, the quality of the pentobarbital provided, and the record of the source of the pentobarbital.

Compounding the problem

Those last two phrases—“the quality of the pentobarbital provided, and the record of the source of the pentobarbital”—deserve a closer look.

The first phrase, drawing attention to the quality of the drug, refers to Missouri’s decision to get its pentobarbital from a compounding pharmacy. Pharmaceutical compounding refers to the creation of a particular pharmaceutical product to fit the unique need of a patient. It’s often used to alter the form of a medication—creating a powder or liquid for a patient who can’t swallow a pill, or creating a special dosage of a medication, such as a half dose, not routinely offered by drug manufacturers.

The problem is that compounding can be controversial, because drugs mixed in compounding pharmacies are not approved by the U.S. Food and Drug Administration. Critics contend use of the compounded drugs could result in needless suffering and botched executions, but states including Missouri have pressed ahead.

Then, there’s the issue of—as the judge noted—“the record of the source of the pentobarbital.” Missouri decided to hide the name of the compounding pharmacy mixing its lethal-injection drug. The state accomplished this task by making the compounding pharmacy a member of its official “execution team,” which could allow the pharmacy’s identity to be kept secret.

Desperate measures

Similar issues outside Missouri demonstrate the lengths to which states seem willing to go to find ways to execute people on death row. For example, a federal civil complaint in Texas claims that officials from state’s Department of Criminal Justice may have falsified prescriptions, lied to pharmacies and perhaps even broken the law.

“The states are scrambling to find the drugs,” says Richard Dieter, executive director of the Washington-based Death Penalty Information Center. “They want to carry out these executions that they have scheduled, but they don’t have the drugs and they’re changing and trying new procedures never used before in the history of executions.”

States have been forced to try new drug combinations or go to loosely regulated compounding pharmacies that manufacturer variations of the drugs banned by the larger companies. 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.”

In October, Ohio was set to execute Ron Phillips using a two-drug cocktail never before used in an execution. Ohio’s Department of Rehabilitation and Correction said it “was unable to obtain a sufficient quantity of pentobarbital.” Pentobarbital was the “preferred” drug [what a concept!], but it became unavailable because of its European manufacturer’s objections to its use as an execution drug. So, Ohio created a new, untested protocol, in which it would inject, intravenously, the sedative midazolam and pain-killer hydromorphone in a lethal dosage. Shortly before it was scheduled, Phillips’ execution was delayed by a lawsuit unrelated to the protocol.

Death to the death penalty

Most American states, plus the U.S. Supreme Court—and all of the European Union—have already decided that previous forms of execution are not acceptable. So, we’re not going back to the gas chamber [although, earlier this year, Missouri’s Attorney General threatened to do so if he couldn’t get the lethal drugs he desperately needed for scheduled executions.] Or the electric chair. Or hanging. Or firing squads. Or the guillotine. Or stoning. Maybe states will look at what they are doing and realize that their desperate, absurd search for an ever-dwindling supply of killer drugs is a form of insanity. We can only hope that state-sponsored executions by lethal injection will eventually join the Death Penalty Hall of Shame, too.  And–if humanity and sanity prevail–so could the death penalty itself.

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The very existence of the death penalty in American law is troublesome, to say the least. But, to make matters worse, the 32 U.S. states that persist in executing people are now looking for a new way to kill. And Missouri, where I live, is leading the way, if one can call recent developments leadership.

To explain: Until recently, Missouri used a three-drug protocol for its executions. But the supply of the first drug in that protocol—sodium thiopental—has run out, because its manufacturers no longer sell it as an execution drug. That puts Missouri in the unseemly position of desperately seeking another drug to end the life of people sentenced to death.

Some states replaced sodium thiopental with pentobarbital, but supplies of that drug have also dwindled, after its manufacturer also announced that it will not sell it for use in executions.

So, Missouri has decided to try a new tack: propofol—the sedative that achieved notoriety in the death of pop star Michael Jackson. With that decision, Missouri will be the first state to use propofol for executions.

That move is regarded as iffy by many, who say that propofol has not been properly vetted and may not be appropriate as a death penalty drug.

Worse yet, Missouri is actually in a hurry to get to the front of the line, because the state’s existing supply of the drug is about to reach its expiration date (!)  And, in the near future, it’s also going to be virtually impossible to purchase propofol, because the three drug companies that manufacture the drug- -Fresenius Kabi, Teva, and Hospira- all say they won’t allow their distributors to sell the drug to departments of corrections if it will be used in executions.

In the meantime, organizations who track developments in the death-penalty world want to investigate propofol to determine “whether it’s all going to be humane and proper…or whether they are just going ahead because they don’t want these drugs to expire…”

But Missouri state officials aren’t waiting for further investigation. They’ve set execution dates for two convicted murderers—one in October 2013 and another in November. Missouri State Attorney General Chris Koster is impatient with the courts, who have held up these executions for several years. Earlier this year, Koster not only expressed his impatience, but also threatened something that shocked a lot of people:

“For nearly a decade, the mere pendency of federal litigation has been used as an artificial hurdle, unauthorized by law or federal court order, to prevent the State from carrying out the death penalty,” Koster said. “The Court’s current position has allowed successive, limited supplies of propofol to reach their expiration dates. Unless the Court changes its current course, the legislature will soon be compelled to fund statutorily-authorized alternative methods of execution to carry out lawful judgments.”

To clarify, what Koster referred to as “statutorily-authorized alternate methods of execution,” is the gas chamber, which, although unused since 1965, is still legal in Missouri. He’s threatening us with the gas chamber?

Commentary: State officials everywhere could do America service by jettisoning the inane quest for better execution drugs, and working, instead, to end the immoral and ineffective use of the death penalty. If it’s so difficult to find a death-penalty method that’s “humane,” why bother? Why not join the many countries who have outlawed the death penalty entirely? And to you, Mr. Missouri Attorney General, I ask this: What’s more important, the expiration date of a drug or the forced expiration of a human life?

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A lethal drug has been in short supply since its Illinois manufacturer has expressed a desire to not be known as the supplier, and this is causing high-ranking officials to scramble for a fix. In January 2011, the Illinois-based Hospira announced it would stop producing sodium thiopental (product name, Pentothal), which is a key drug for executions by lethal injection. Hospira’s move came in response to  a demand by the Italian government for a guarantee that the manufacturer’s Italian plant output of sodium thiopental would not be used in an American execution. Rather than place the company’s Italian employees at risk, Hospira decided that  to  cease all production of the drug.

The immediate shortfall in sodium thiopental caused states to delay executions and scramble for alternatives. In many cases, switching to another drug involves getting approval of courts and legislatures, a time-consuming and expensive process. Some states do have other options, Utah is able to utilize firing squads, and Georgia still has the electric chair as an alternative, while other states are able to use different drugs or combinations of drugs.

Some states appealed to  Federal authorities, requesting assistance in obtaining the drug, prompting the U.S. government to ask the German government to intervene and convince one of that nation’s drug companies to begin supplying the executioner’s needs. The German Vice-Chancellor rebuffed the American request. European governments including Britain, France and Denmark have also made it clear that they are uninterested in providing lethal drugs to be used in executions. The negative publicity for EU companies that have even considered supplying the executioner’s drugs has led to drastic drops in stock prices and noticeable tarnishing of company images. Most recently the EU has firmed up the regulations regarding the export of drugs used in executions, a move that will further aggravate the shortage of drugs used in executions.

Federal and state officials have moved on to what is hoped to be greener pastures for execution drugs, approaching companies in India to supply sodium thiopental. To mask the real purpose of the purchase, federal and state officials approached the companies via an intermediary. This strategy caused a scandal in India, when it was revealed that a drug company publicly committed to assisting the ill and suffering would be providing a drug used to snuff out the life of a living person.

An important reason for the use of sodium pentothal is the need for anesthesia while the paralytic drugs take effect. Without anesthesia, the inmate being executed will feel intense pain, which has been described as a burning sensation followed by slow asphyxiation with total awareness of what is happening, without being able to respond or signal to others what they are experiencing.

To make matters worse, even with the use of a good anesthetic, administration of the drug is often problematic. An anesthesiologist is trained for over five thousand days on proper methods to administer anesthesia. A prison official charged with administering anesthesia during an execution may only receive two to three hours of training. This has led to botched executions with inmates struggling in obvious distress and pain as the drugs fail to do their job in the correct order, providing a true horror show for witnesses. When Roy Blankenship was executed in Georgia, he gasped, struggled, lurched and jerked on the gurney for a prolonged period and never closed his eyes. Georgia has made no significant changes in its procedures or materials used since then.

The ACLU has compared America’s efforts to obtain lethal drugs to continue carrying out executions to a junkie continuing to seek his fix. Other drugs have been tried without the desired results (much like junkies try other drugs when unable to get their “drug of choice”).  The U.S. has been warned and pleaded with to discontinue its drug use (again like a junkie’s friends staging interventions), and still the U.Ss is unwilling to give up the drug use.

Some would claim that many of the problems described should not be a worry; after all we are talking about people who committed horrendous crimes. Troy Davis was executed recently by the state of Georgia, using a drug cocktail that included sodium thiopental and there is still doubt about his guilt. Davis insisted on his innocence to the very end. The fact is that innocent people are executed along with many others who or may not be innocent, with no expectation of certainty one way or the other. The rest of the world considers the practice barbaric. Shouldn’t we?

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