"The death penalty is capricious, discriminatory and barbaric. The shortage of sodium thiopental has stripped what Justice Harry Blackmun called 'the machinery of death' of even a cloak of scientifically based reliability." The Broken Machinery of Death, The New York Times, March 18, 2011The nationwide shortage of sodium thiopental, one of the drugs traditionally required for the three-drug lethal injection "cocktail," left several states without the means to carry out executions. I have written several pieces on the frenzied scramble that ensued, with state officials acting like addled drug addicts in desperate need of a fix, scouring the globe to find lethal drugs. (See, e.g., State of Barbarism, Unevolved and Indecent, Lethal Lifesavers.)
The New York Times, in an article published today summarizing the states' "desperate and sometimes furtive" efforts, described "the intense communication among prison systems to help each other obtain sodium thiopental, and what amounts to a legally questionable swap club among prisons to ensure that each has the drug when it is needed for an execution."
Several states recklessly bought drugs from questionable overseas sources, using various deceptive means to get them past U.S. Customs and FDA officials. For example, Georgia tried to obtain the drugs directly from the Dream Pharma, a British company run out of the back room of a driving school. The DEA has since seized this shipment as well as those obtained by Kentucky and Tennessee. Arizona tried a different approach, labeling the drugs as intended for veterinary use to avoid more stringent inspection.
Washington lawyer, Bradford A. Berenson, a former official in the Bush Administration, criticized the states for being "pretty heedless of the legal lines” regarding the purchase and importation of lethal injection drugs. As Berenson put it, it was as if “because this was death-penalty related, it was somehow exempt from all the normal rules, [but] as a legal matter that was not true.”
But this goes beyond the unseemly and likely illegal nature of the states' conduct. The three-drug execution protocol is fraught with enough uncertainty as it is. The first drug, sodium pentothal, is a barbiturate that is supposed to render the inmate unconscious. A second drug is designed to cause muscle paralysis and respiratory arrest. The third drug is supposed to stop the heart. There is no way, however, to tell by observing the process if the barbiturate is actually working. Because the inmate is paralyzed by the second drug, it can't be discerned whether the inmate is truly unconscious or is simply unable to scream out in pain. If the barbiturate obtained for lethal injections from unreliable sources has not been inspected, evaluated or tested, there is no guarantee that it will be effective, which could result in excruciating pain during the execution.
Other states have decided to use a more readily available drug, penobarbital, which is a sedative used to euthanize animals. Mississippi, Texas, Oklahoma and Ohio are going this route. (Ohio recently has used penobarbital alone in a 1-drug protocol.) However penobarbital has never been tested for its effectiveness on humans. As the Texas ACLU pointed out, there is no evidence that there has been any "meaningful assessment of whether pentobarbital can or should be used in combination with the other two drugs administered in lethal injections."
Douglas A. Berman of Ohio State University, an expert on sentencing and punishment, was quoted in the Times article as describing "this mess [as] a speed bump, but one that does raise serious issues about the death penalty” beyond what he called the "'Keystone Kops' fumbling of state officials. Indeed.
Laws, policies and regulations that are designed to ensure a fair, just and humane process are perpetually at odds with the desire of government officials for sure and swift punishment. From trial to execution the state cuts corners. Prosecutors commit misconduct to secure convictions and death sentences without fear of adverse consequences. (See Carte Blanche for Prosecutors.) And prison officials obtain lethal drugs "heedless of the legal lines." The ends are supposed to justify the means. Instead, we are left with state-sanctioned killing that is capricious, discriminatory and barbaric.