CALIFORNIA & THE ONE-DRUG COCKTAIL
Death penalty advocates who sued the state in 2014, hoping to find a way to restart California’s executions, received positive news for their cause earlier this month when state officials agreed to develop a new method for lethal injection executions that would use just one drug instead of three, which had been the method in the past California and most other states. Now, due to drug shortages and problematic executions, eight states have moved to the one-drug method.
The state agreed that the development of the single drug would move forward, with a four-month time clock, just as soon as the U.S. Supreme Court rules on a lawsuit brought by three Oklahoma death row inmates after three American executions last year were horribly botched.
THE SUPREMES & THE MIDAZOLAM PROBLEM
Lawyers for the three have argued that all three inmates experienced severe enough pain as they died that the states’ actions crossed into the arena of unconstitutionality.
The primary culprit in the execution botching was reportedly one of the drugs that officials used as part of each state’s approved three drug cocktail, namely midazolam, a drug that has been used by four states as part of their capital punishment regimin, and that four more states propose using.
It seems that states have switched to midazolam because the companies that make the more trustable types of barbiturates, now refuse to allow their drugs to be used as part of anybody’s state cocktail to kill humans.
But, although it has been approved for use by various lower courts, the case before SCOTUS contends that it is simply not safe unless we’re willing to risk torturing our death row inmates.
In particular, according to the three Oklahoma plaintiffs, it was the execution of another Oklahoma death row inmate, Clayton Lockett, in 2014, that was truly cruel and unusual punishment as defined by the Eighth Amendment, in that Lockett woke back up in the middle of everything, began trying to talk, and appeared to be suffering horribly.
As to how the outcome of the case could affect California, it is not the decision about the specific drug, midazolam, that matters, but rather the new standards a ruling could set by which courts should evaluate challenges to a particular method of execution. California officials are loath to set a new protocol only to have their chosen one-drug method tied up in years of court appeals.
The ruling is expected to come near the end of this month.
CRUEL AND UNUSUAL
So, okay, how bad was Lockett’s botched execution really?
Jeffrey E. Stern, writing for the June issue of the Atlantic, has a deeply researched longread that explains in elaborate detail what the state had to go through to get the drugs it intended to use to kill Lockett, the secrecy around the drugs the state was using, and the ghastly execution itself. It is a tale that is both fascinating and horrifying to read. And it is likely a necessary read for anyone who intends to engage knowledgeably on one side or the other of the capital punishment debate.
Here are a couple clips from Stern’s story:
First, this section below provides a look into the byzantine gyrations Oklahoma and other states had to go through simply to acquire the needed deadly potions.
….What many people don’t realize, however, is that choosing the specific drugs and doses involves as much guesswork as expertise. In many cases, the person responsible for selecting the drugs has no medical training. Sometimes that person is a lawyer—a state attorney general or an attorney for the prison. These officials base their confidence that a certain drug will work largely on the fact that it has seemed to work in the past. So naturally, they prefer not to experiment with new drugs. In recent years, however, they have been forced to do so.
The problems began at a pharmaceutical plant in Rocky Mount, North Carolina. The Food and Drug Administration discovered that some of the drugs made there were contaminated and in April 2010 sent the manufacturer, Hospira, a warning letter. Hospira stopped producing, among other drugs, a barbiturate called sodium thiopental. No other company was approved by the FDA to make sodium thiopental, which was the anesthetic of choice for almost all of the states that carried out executions. (The death penalty is legal in 32 states; 17 of them have performed an execution in the past five years.)
With sodium thiopental suddenly unavailable, states scrambled to find alternatives. In June of that year, officials in Georgia discovered a work-around: a small-time businessman in London named Mehdi Alavi, who sold wholesale drugs through a company called Dream Pharma, would ship sodium thiopental to them. Georgia bought some from him, and then Arkansas did too. With Hospira offline, Alavi had the U.S. execution market cornered. Arizona bought sodium thiopental from him in late September and used it the next month to execute a convicted murderer named Jeffrey Landrigan. California placed an order as well.
Maya Foa, an anti-death-penalty advocate based in London, saw Dream Pharma mentioned in court documents related to Landrigan’s execution and decided to pay a visit. At the company’s address, she found a small building with peeling white paint and a placard that read Elgone Driving Academy. Inside she found two desks and, in the back of the room, a single cabinet. That was it: Dream Pharma. Alavi imported execution drugs from elsewhere in Europe and shipped them to the United States, using that cupboard in a driving school as his base of operations.
Reprieve, the human-rights organization where Foa worked, wrote to the British government, arguing that supplying drugs for executions violated British law, since the death penalty is illegal in Europe. The government balked. Stopping the shipment of a drug would hamper free trade and could be harmful to patients. Foa responded that the “patient” argument was erroneous—there was no trade of sodium thiopental between the U.S. and the U.K. for medicinal purposes. It was all for executions. This time, the government agreed. England announced tighter export restrictions, which effectively banned the sale of the drug for executions. Foa then persuaded the European Commission to follow suit by amending its torture regulation. U.S. states trying to carry out the death penalty were now blocked from buying drugs not just from England, but from all of Europe.
So they looked even farther afield. In late 2010, a company in Mumbai, Kayem Pharmaceuticals, received an e-mail from the Nebraska Department of Correctional Services. Officials there wanted an anesthetic that Kayem made mostly for clients in Angola: sodium thiopental. Kayem sold Nebraska 500 vials, enough for more than 80 executions. Soon after, Foa’s boss wrote the company to explain how Nebraska planned to use its product. When South Dakota officials tried to place an order, Kayem jacked up the price 900 percent, to $20 a vial, hoping the cost would dissuade them. It didn’t. South Dakota bought 500 vials. Kayem stopped selling the drug to the U.S. immediately after that….
Then once Oklahoma officials had the required drugs and tried to go about executing their prisoner, things did not go well at all:
As Zellmer tried to get the needle into the jugular, the paramedic stuck Lockett three more times on his right arm, failing each time.
Zellmer got the needle into Lockett’s neck and saw flashback, but then saw blood spread under the skin—he thought the needle might have gone all the way through the vein. Zellmer decided to try a subclavian line, in a vein running beneath Lockett’s collarbone. The paramedic brought him a central-venous catheterization kit, and Zellmer numbed Lockett’s chest with lidocaine. The paramedic tried two different veins on Lockett’s right foot; both attempts failed.
Zellmer kept trying to get the needle into Lockett’s subclavian vein. He finally saw a little flashback, then lost the vein and couldn’t get the needle back in. After repeatedly sticking Lockett’s chest, he decided to try the femoral vein, in Lockett’s groin. The paramedic went to get a longer needle.
As the warden, Anita Trammell, watched the doctor and the paramedic work on Lockett, she felt a sliver of pride for the inmate. He’d now been stuck with needles more than a dozen times. She knew he was in pain, but she thought he was taking it like a man. Trammell tried to make conversation to help calm him. She knew he had been a drug user. “What was your drug of choice?” she asked him.
“Ice.”
“I thought that was a white man’s drug,” she said, and he laughed.
The paramedic came back and said she had no needles longer than an inch and a quarter. That presented a problem. The femoral vein lies deeper in the body than other veins, so they would ideally use a needle at least twice that length. There were longer needles inside a second central-venous catheterization kit, like the one they’d just used on Lockett’s chest, but neither Zellmer nor the paramedic thought of it. Zellmer asked for an IO-infusion needle. IO stands for “intraosseous”—into the bone. It is, in effect, a power drill, used to bore a hole through bone and into the marrow, and therefore doesn’t require finding a vein.
The prison had no IO needle. Zellmer had only the absurdly short one-and-a-quarter-inch needle. “Well,” he told the paramedic, “we’ll just have to make it work…..”
AND BACK TO YOU, CALIFORNIA
So can California really do reliably better by using just one drug? What drug will officials propose using? Is that drug reliable? And will CA be able to get the drug that officials select, now that more and more manufacturers are declining to allow their medications to be use for state executions? All those questions have yet to be answered.