"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Sunday, March 22, 2015

U.S.: Execution drug supply is running low, and states are looking for lethal backup plans

Texas Death Chamber
Nitrogen chamber? Firing squad? Electric chair?

A bulky wooden chair outfitted with leather straps sits in Huntsville's Texas Prison Museum, still fully functional, but unused in its faux death chamber. But before its retirement in 1964 this electric chair, dubbed Old Sparky, carried out 361 executions. For visitors, the chair stands as an illustration of how far Texas has advanced in capital punishment - a relic of what some consider past barbarism. But with a dwindling supply of lethal injection drugs in the U.S., states have started looking to bygone execution methods - not unlike Old Sparky - as a backup plan.

If Texas goes through with Kent Sprouse's execution April 9, it will have exhausted its last dose of pentobarbital, the lethal injection drug it has used since 2012. That leaves the state, which has the macabre distinction of being the nation's leading executioner, with 3 more April executions and no plan as to how to carry them out. Jason Clark, a spokesperson with the Texas Department of Criminal Justice, said the department is "exploring all options, including the continued use of the pentobarbital or alternate drugs."

But could "all options" also include plugging Old Sparky back in?

That's what officials in other states are considering. This month, Alabama's House of Representatives voted on a bill that, in case of a continued drug shortage, would bring back the electric chair. And in May, the Tennessee Supreme Court will hear a challenge to the state's attempt to bring back the electric chair.

And if the electric chair sounds antiquated in this age of lethal injection, just consider the firing squad.

The Utah state legislature passed a bill this month that would reauthorize death by a firing squad if lethal injection drugs cannot be secured 30 days before an inmates' scheduled execution. Rep. Paul Ray, the bill's sponsor, decided to draft it after he learned last year that Utah had no execution drugs.

"It became apparent at that time that we needed a plan B just in case," Ray said. "We're still 2 or 3 years out on our next execution, but my thought was, 'Well, let's get something in place now. Just in case we need it, it'll be there.'"

Legislation to allow firing squads in Arkansas also was introduced this year, along with a failed attempt in Wyoming. Oklahoma, meanwhile, is toying with a new take on the gas chamber. The Oklahoma House passed a bill earlier in March that would allow nitrogen chamber executions. Like its predecessor, nitrogen chambers would involve an airtight chamber, but instead of filling it with poison gas, the nitrogen would cause death by asphyxiation.

But it isn't some nostalgia for brutality fueling this wave of states seemingly backpedaling on progress. It's increasingly becoming a necessity. A recent GAO report shows that the U.S. faces a widespread drug shortage that started in 2007.

As the stock of drugs began to dwindle, few domestic suppliers were able to to keep up with the deadly demand. So states turned to European pharmacies. It turned out to be a temporary fix, as 1 by 1 Italian, German and Dutch suppliers cut off drugs supplies when they discovered they were being used to kill. The companies' bans reflect a larger cultural difference - the U.S. is the only Western country that still carries out executions.

Keeping dates with death

But if the aim was to stymie executions, the plan looks like it backfired.

"Our hand has kind of been forced without the availability of drugs," Ray said. "There's still support for the death penalty, so you have to have a way to do that."

He continued, "The interesting thing is that these companies in Europe are opposed to the death penalty so they withhold these drugs. They seem to be opposed to the firing squad over there. But they're the reason we're using the firing squad. They need to understand that they might not like what we're doing, but they're the reason we're doing it."

Most of the state legislation, however, is nothing but the sketching of a backup plan. Still, with the clock ticking for 2015's roster of death row inmates, 10 across the country and 6 in the state, Texas needs a solution - fast. Even for trigger-happy Texas, it's unlikely that there will be a sudden shift to another form of execution - or at least not in the next month. Meghan Ryan, a law professor at Southern Methodist University, pointed out that even if states dodge the problems that lethal injections pose, new methods would be open to judicial scrutiny.

"The problem with going to other methods of execution is that there are potentially constitutional concerns about that, just like there are constitutional concerns about what states are doing now in experimenting with different lethal injection cocktails," Ryan said. "We're sort of in a state of uncertainty regarding executions in general."

Ryan said that the state push for lethal injection alternatives could hit a snag under the Eighth Amendment's bar on cruel and unusual punishment. It is unclear if bringing old techniques out of retirement when lethal injections exist would hold up in court.

"The idea that punishments ought to be evolving toward more humane methods of execution suggests that moving backward, such as toward the electric chair or firing squad, might be questionable or possibly unconstitutional," Ryan said.

Texas does have a stockpile of the sedative midazolam that it could adopt into its protocol with the stroke of a pen. But the controversial drug, which replaced the depleted sodium thiopental in some states' drug cocktails, has been used in 3 botched executions. Most notably, it was part of the horrific death of Oklahoma inmate Clayton Lockett last April, which drew worldwide attention to lethal injection practices.

"Every Department of Corrections in the country is looking at all of this," said Deborah Denno, a law professor at Fordham University and expert on lethal injections. "They're very aware that if they do anything wrong, and they're so capable of it, that this is going to set into motion a series of questions about this entire process."

And if midazolam's link to botched executions wasn't enough, there's the upcoming Supreme Court case brought by three Oklahoma death row inmates that centers on the drug. The case, which is set to be argued April 29, has already led judges in Florida and Oklahoma to halt executions until the court reaches a decision. So for now, it seems that midazolam's reputation will keep Texas - or any other state - from touching its stash.

"My sense is that they're probably scrambling to find a compounding pharmacy in this country that would make more pentobarbital for them. That would be my 1st guess," Denno said.

The long-term solution to lethal injection drug shortages will take time and likely many court battles to sort out. But it's time that Texas, at least, doesn't have - unless it wants to do what Ohio did when it halted executions indefinitely after one was botched in 2014. The chances of that in the Lone Star state? Slim, especially since there have been no efforts for the state to take a break from its busy schedule.

"Knowing the history of Texas and other states that are advocates of capital punishment, I think they will do what they can to try to keep executions in line and on schedule," Ryan said.

Much like the rest of the country, the next steps for Texas are unclear. The Supreme Court's guidance on midazolam usage could clear pathways for states to use the drug. On the flip side, it could completely bar it, sending the U.S. on another pharmaceutical scramble. Or perhaps the frustration of switching from one drug to another, each step taken with unsure footing, will lead states to alternatives like in Utah.

Meanwhile, Old Sparky is still on display.

Source: Commercial Appeal, March 22, 2015


The drugs don't work

Utah's "firing squad chair" used for the 2010 execution
of convicted killer Ronnie Lee Gardner
When lethal injection gets tricky, try guns or gas

In 1996 the state of Utah put John Albert Taylor, a man who had raped and murdered an 11-year-old girl, to death by firing squad. Chris Zimmerman, a retired police officer who investigated the murder, witnessed the execution. "Off to our left was Mr Taylor, off to the right, behind a wall, was the firing squad," he remembers. "There was a countdown, and the firing squad were ordered to aim and fire. I heard a simultaneous explosion - you couldn't tell the guns apart. He clenched his fists, his chest rose a little, like it was suddenly filled with gas. Then he unclenched his fists, the doctor walked out with a stethoscope and checked his pulse, and it was over."

Since 1976, when capital punishment was brought back in the United States, only 3 people have been executed by firing squad in America - all in Utah. The state banned the method in 2004 (though since the law did not apply to past cases, another man was shot in 2010). But on March 10th its legislature passed a law to bring back the guns. Utah is one of several states trying to ensure it can kill people if lethal injection, the preferred modern way, is not available. To the relief of abolitionists, not many are succeeding.

Lethal injection has been becoming more controversial, and trickier, since 2011, when the European Commission banned the sale of eight drugs if the purpose was to use them in executions. Many manufacturers, including American ones, fearing bad publicity as well as regulatory problems, stopped making or supplying drugs too. The result has been an acute shortage of the chemicals with which it is legally possible to execute people in most of the 32 states that still have the death penalty. Last year 35 people were executed in America, the fewest since 1994.

Several states have tried to acquire drugs in other ways - typically from crude "compounding pharmacies". But since this has not always worked, they must find alternatives. In Oklahoma, where a botched lethal injection took 43 awful minutes to kill a prisoner last year, the state House on March 3rd overwhelmingly approved a bill to allow the state to execute people by gassing them with nitrogen. On March 12th the Alabama House voted to reintroduce the electric chair. In Wyoming, the state House has passed a bill to bring back firing squads. Several states now also keep the names of their lethal-drug-suppliers secret, to protect them from protests.

So far, however, few alternatives have passed into law. Several states retain the option of the electric chair, and a few the use of hanging, but such executions are now extremely rare, and almost only because the prisoner requests it (the last man to die by the electric chair was in Virginia in 2013). Wyoming's bill on firing squads was held up by a debate about whether prisoners should be sedated, and ultimately failed; Utah's barely made it to a vote, and may yet be vetoed by the governor. Only in Tennessee has a law reintroducing the electric chair made it on to the books.

While executions are held up, some 3,000 condemned prisoners are left unsure of their fate. While waiting, they are in effect serving life sentences of solitary confinement, with few visitors allowed. Their number, however, is gently declining. In 2013, the latest year for which figures are available, more prisoners were removed from death row than were executed, mostly because their sentences had been commuted to life.

The problem with resurrecting older methods of execution, says Robert Dunham, the head of the Death Penalty Information Centre, an NGO, is that they will instantly be challenged as unconstitutional "cruel and unusual punishment" - creating as much delay as the drugs shortage. This is why many states moved away from the electric chair in the first place. In addition, polls suggest that even death-penalty supporters are squeamish about most alternatives to lethal injection. "Don't we care about how Utah is perceived in the country and in this world?", asked 1 Utah state representative in the firing-squad debate. Notoriously, the state was the 1st to seize its chance to execute a criminal after 1976. The case of Gary Gilmore caused a media sensation; and so did the state's latest use of the firing squad in 2010.

In reality, insists Mr Zimmerman, shooting is hardly more barbaric than poisoning with drugs. "There was no blood. He died so quickly he didn't bleed," he says of Taylor's execution. But whatever the alternatives, free-flowing drugs are not returning. On April 9th Texas is expected to use its last dose of pentobarbital, its preferred drug; earlier this month Georgia delayed an execution to check the quality of its supply. Death's proponents are not giving up, but life is getting harder.

Source: The Economist, March 22, 2015

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