The American death penalty system continues to face an important shortage of lethal drugs necessary for executions.
Before that troubled period, the usual “three-drugs protocol” for an execution was composed of:
- Sedative sodium thiopental to render the condemned unconscious,
- Pancuronium bromide to relax muscles and stop the breathing,
- And a final dose of potassium chloride to provoke cardiac arrest.
In 2010, the sole U.S. producer of sodium thiopental, Hospira, stopped manufacturing the anesthetic marketed as Pentothal after Italian authorities asked for a guarantee that the drug would not be used to execute people. That year, Hospira decided to relocate the Pentothal production to Italy. After the Italian pressure, the company simply preferred to cease all production of Penthotal, forcing the Department of Corrections to source their execution drugs overseas, especially from European drugs manufacturers.
Later in 2010, the British NGO Reprieve was contacted by the lawyers of a death row exoneree. The lawyers informed Reprieve that the Tennessee Department of Corrections was seeking to purchase sodium thiopental from a British company. One month later, with the help of the U.K. government, the export of sodium thiopental from the U.K. to the U.S. was made illegal and the Departments of Corrections had to find another supplier.
Reprieve systematically traced the origins of the execution drugs, while state secrecy laws about those drugs did not exist yet. They informed the Danish company Lundbeck that its products were used for lethal injections. Six months later, after the dramatic sale of 300,000 shares by one of its very disappointed shareholders, Lundbeck decided to prohibit the sale of its products to any corrections authorities or suppliers in contact with them. The same strategy was used by the German company Fresenius Kabi (which manufactures the anesthetic Propofol), the Israeli company Teva, and the Indian company Kayem Pharmaceutical.
Their main arguments are pretty much the same as Hospira’s: “Hospira makes its product to enhance and save the lives of the patients we serve, and, therefore, we have always publicly objected to the use of any of our products in capital punishment.” An additional concern is that their products are not tested to know if they are good enough to kill people without pain.
Finally, in December 2011, the European Union decided to include “products which could be used for the execution of human beings by means of lethal injection” (like thiopental sodium and pentobarbital, the anesthetic agents of the lethal injection protocol) in its existing regulation on prohibition of goods which could be used for capital punishment and torture, making executions even more difficult to perform in the United States.
State corrections officers increasingly turned to compounding pharmacies because of their willingness to custom mix drugs which have never been tested or approved by the FDA. As a result, the first four people executed in 2014 were killed in four different ways with various combinations of drugs, and two of them showed disturbing signs of pain. Since then, many death row prisoners have filed lawsuits seeking information about the drugs that will be used to execute them while states are trying to keep the drug combinations, and the suppliers of those drugs, a secret. Courts in Georgia, Arkansas, Tennessee, Louisiana and, more recently, Oklahoma, have suspended executions amid questions about lethal injection.
There is no dispute that if the sedative is not effective enough to render him (or her) unconscious, the condemned can experience agonizing suffering from the asphyxiation caused by pancuronium and the caustic burning sensation caused by the potassium. Those symptoms were already observed this year, when Ohio killed Dennis McGuire using an unprecedented combination of compounded drugs. The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishments. These secret lethal injection drug combinations that induce violently painful responses violate the condemned’s constitutional rights.
Will lethal injection drug shortages lead to a resurgence of barbaric means of execution, like the gas chamber, electric chair, or firing squad? Some states, like Tennessee, have already decided to reintroduce the electric chair, while other states are also attempting to bring it back. We don’t know how the public, or the Supreme Court, will react to these dramatic death penalty changes. All we know is that the world is watching…