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Bring back the firing squad? Lethal injection in crisis.

The lethal injection chamber at San Quentin State Prison in California - unused since 2006.

The lethal injection chamber at San Quentin State Prison in California – unused since 2006.

Published in The Age on March 28, 2014.

The year has not started well for supporters of the death penalty in the United States of America. On February 11, the Governor of Washington state, Jay Inslee, suspended capital punishment for the duration of his term, saying that “there are too many flaws in the system.” On March 12, New Hampshire’s House of Representatives voted overwhelmingly in favour of repeal, indicating that the state is likely to become the seventh in seven years to put a stop to executions.

Inslee cited the lengthy, expensive appeals process, the number of death sentences overturned and the arbitrary way in which the punishment has been applied in Washington. But there was one telling indicator of a deeper, national crisis that he didn’t mention: the first four men executed in 2014 were killed in four different ways.

In Florida, Askari Muhammad was injected with midazolam hydrochloride, to sedate him, then pancurium bromide, a paralytic, and finally potassium chloride, to stop his heart. He had been on death row for forty years and took fourteen minutes to die.

Two days later, in Oklahoma, Michael Wilson went under the needle. This time the first syringe was filled with pentobarbital. Although he showed no outward signs of distress, his last words were “I feel my whole body burning.”

In Ohio, a new two drug combination of midazolam followed by hydromorphone, with no paralysing agent, was used to kill Dennis McGuire. In his final twenty-six minutes he writhed, clenched his fists, gasped for air and made loud, guttural snoring sounds.

Lastly, in Texas, Mexican national Edgar Tamayo was put down with a straight shot of pentobarbital, despite pleas from the Mexican government and the US State Department not to execute him.

Across the USA, states are scrambling to obtain the deadly drugs they need and switching to new, untested procedures. Lethal injection, a process expressly designed to make capital punishment appear painless, may prove fatal to the death penalty itself.

“The more lawyers are able to find out what the states are doing, the more we see that they are skirting the laws, violating the laws, maybe using products that don’t have guarantees of safety or effectiveness,” said Megan McCracken, a specialist in lethal injection litigation at the University of California’s Death Penalty Clinic. “The more you lift up the veil the more problems you see. That speaks to a broader problem with the death penalty.”

Ohio Governor John Kasich has stayed the next execution in his state for eight months, granting Gregory Lott a reprieve while the corrections department conducts an extraordinary review of McGuire’s execution. In Louisiana, a federal judge ruled that the state could not put Christopher Sepulvado to death using the same drug cocktail that killed McGuire and postponed his execution until April, at least.

In Arkansas, a state judge blocked all executions until a comprehensive new drug protocol is devised. The ruling was moot: Arkansas has not executed anyone in almost a decade, in part because of doubts about whether lethal injection violates the Eighth Amendment of the US Constitution, which prohibits “cruel and unusual” punishment.

Popular support for the death penalty remains strong. When Gallup released its annual poll about attitudes to capital punishment in October 2013, it noted that support had dropped to its lowest level in forty years. Still, six in ten respondents favoured the death penalty for convicted murderers.

How the question is posed makes a difference. People are less likely to endorse capital punishment when offered the option of sentencing killers to life without parole. But when Gallup asked whether the death penalty is imposed too often, about the right amount or not often enough, only 22% said it is used excessively.

In the case of heinous crimes, the more details people know, the more likely they are to favour a death sentence. Muhammad was convicted of kidnapping and shooting the couple that employed him, and later stabbed a prison guard to death with a sharpened spoon. Wilson and three accomplices beat a cashier to death with a baseball bat. McGuire raped a pregnant woman, slit her throat and dumped her in the woods. Tamayo shot a police officer in the head during a failed attempt to escape.

In 1890, the Supreme Court ruled that methods of execution that amount to “torture or a lingering death” are prohibited by the Constitution. Chief Justice John Roberts cited this definition of cruelty in 2008, rejecting an Eighth Amendment challenge to lethal injection. “The firing squad, hanging, the electric chair and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection,” he wrote.

Lethal injection was devised by two politicians in Oklahoma, Bill Dawson and Bill Wiseman, neither of whom were medically qualified. Wiseman envisaged a process that would result in “no pain, no spasms, no smells or sounds – just sleep, then death.” With the help of the state’s chief medical examiner, Jay Chapman, they came up with the modern three drug protocol, and in April 1977, Oklahoma became the first state to adopt lethal injection. Of 1,369 US executions since, 1,194 have been carried out at the point of a needle.

Fissures in this consensus started to emerge in February 2006, when the execution of Michael Morales was halted in California. After two anaesthetists declined to participate, a judge ruled that only a medical professional could administer the drugs and placed a moratorium on executions that remains in place.

In 2011, Hospira, the sole American manufacturer of sodium thiopental, a sedative used in executions, halted production in the USA. The same year, the Danish drug producer Lundbeck blocked the sale of pentobarbital to US prisons. In 2012, two German manufacturers of Propofol (an anaesthetic best known as the drug that Michael Jackson overdosed on) introduced strict distribution controls to prevent it being used to administer the death penalty.

The drugs that killed Dennis McGuire were manufactured by Hospira. Although the company does not sell execution drugs directly to corrections departments, its statement leaves significant wiggle room: “We have always publicly objected to the use of any of our products in capital punishment… these products are distributed through a complex, vast supply chain… Hospira cannot guarantee…” and so on.

McGuire’s family has filed a federal lawsuit against the company that, if successful, would compel it to put end user agreements in place to prevent its drugs being used in executions. “Our goal is that you should not use a method that hasn’t gone through a clinical trial, hasn’t been tested, hasn’t been authorised,” said their lawyer, Jon Paul Rion. “And if that means the end of lethal injection, so be it.” Hospira and Ohio’s department of corrections both declined to comment on the suit.

With so many official distribution channels closed off, states are turning to compounding pharmacies, which are not subject to regulation by the Food and Drug Administration. “It’s like a local drug store that mixes stuff in the back, and they pound out the powders and pour in the liquids,” said Richard Dieter, Executive Director of the Death Penalty Information Centre. “The objection in court is not that pentobarbital is painful, nor that it doesn’t work, but who is making it. The states are hiding that information.”

On January 30, Herbert Smulls was executed in Missouri with a dose of pentobarbital acquired from an Oklahoma pharmacy, The Apothecary Shoppe. His lawyers had argued that if the compounded drug was contaminated or incorrectly prepared, it could cause excruciating pain. The Supreme Court denied his last-minute appeal.

Missouri, in common with many other death penalty states, has a statute protecting the identity of its execution team. Its attorneys have asserted that this extends to the name of the pharmacy making the drugs. Corrections Department Director George Lombardi told a House panel the state paid $8,000 in cash for the pentobarbital that killed Smulls, but would not say where it came from. The Apothecary Shoppe’s involvement was revealed by a local paper, the St Louis Post-Dispatch.

On February 17, The Apothecary Shoppe said it would not supply drugs for Missouri’s next execution. Nine days later, Michael Taylor was executed for the rape and murder of a schoolgirl, Ann Harrison. The state did not disclose where it obtained the pentobarbital to kill him. “Since the humaneness and the constitutionality of the execution turns on whether or not the drug in the syringe is exactly what it purports to be and will work as you need it to, it raises great concerns,” McCracken said.

The firing squad execution chamber at Utah State Prison.

The firing squad execution chamber at Utah State Prison.

As the legal challenges mount, states are being forced to consider alternatives. Legislators in Missouri and Wyoming have introduced bills to revive the firing squad. In Louisiana, Representative Joseph Lopinto has threatened to “bring back the electric chair,” if the current impasse over the state’s lethal injection protocol is not resolved soon.

Dieter, an abolitionist, suggested that society – and by extension, the Supreme Court – would not tolerate a return to the electric chair. “People aren’t as concerned with what the inmate is feeling,” he said. “But blood and smoke are just… the weight of those images is disturbing from the beginning.”

Lethal injection’s difficulties are creating an unlikely alliance between abolitionists and death penalty advocates who believe that capital punishment’s primary purpose – retribution against the worst of the worst – has been forgotten in the attempt to shield society from violence being done in its name. “The problem with lethal injection,” New York Law School Professor Robert Blecker told me, “is not that it possibly causes pain, but that it certainly causes confusion. It conflates punishment with medicine.” He compared the execution that he witnessed to the death of his elderly father-in-law, in a hospice.

In his memoir, The End of Punishment, Blecker argues for a return to the firing squad, with one modification: offering the victim’s family an opportunity to take part. “The firing squad is honest about what it is,” he said. “Secondly, one of the shooters traditionally has a blank in his gun and doesn’t know it, so you can disavow responsibility.”

Where Dieter and Blecker disagree is as to whether the lethal injection crisis represents an existential threat to the death penalty itself. In the last six years, nine states have either repealed or suspended the death penalty and New Hampshire is likely to follow suit soon. Dieter predicts that more and more states will move away from capital punishment, until a majority have outlawed it, at which point, the Supreme Court will decide that the definition of “cruel and unusual” has shifted and rule it unconstitutional.

The death penalty is already an overwhelmingly southern phenomenon. Thirty-two of the thirty-nine executions carried out in the United States last year were in the south, more than half in Florida and Texas alone. In the modern era, since capital punishment resumed in 1977, 2% of the USA’s counties are responsible for 52% of the country’s executions.

Nationwide, the number of death sentences being imposed is in decline, as prosecutors choose not to “go death” and juries opt for life without parole. To Blecker, this is evidence of a system learning from its mistakes. “Part of the reason we seem to be moving away from it in numbers is that historically we’ve been too indiscriminate and we’re getting more discriminating,” he said. “That’s good.”

In his view, capital punishment enjoys too much popular support to be in any imminent danger, and the conservative make-up of the current Supreme Court makes it highly unlikely that an Eighth Amendment challenge will succeed. Death penalty states will simply have to decide on a different means of killing people. “I’ve been publicly opposing lethal injection for years and never imagined that it would be the abolitionists who would help us make that transformation,” he said.

Pressure is building to resolve the matter one way or the other. “They ought to just bring back the firing squad – I don’t care,” was the way Joe Deters, the chief prosecutor of Hamilton County, Ohio, put it. “If they’re going to have a death penalty in Ohio, they should carry it out. And if you don’t want it, get rid of it. That’s fine with me.”