Death by Lethal Incompetence

The state of Missouri got its latest batch of death penalty drugs in a backroom deal as shady as any street drug deal. If we can't do the death penalty right, maybe we should reconsider doing it at all.

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By Neville Elder

03/11/14

Execution Drugs in Short Supply as Europe Opposes Death Penalty

25 years ago on the morning of March 22nd Michael Taylor and Roderick Nunley abducted Ann Harrison, a 15-year-old high school student, from her home in Kansas City, Missouri. They raped and murdered her and left her body in the trunk of a stolen car.

After their arrest the two men confessed to the crime. In an unsuccessful gambit they waived their right to a trial to appear before a judge to avoid the death penalty, but there was no mercy and they were both sentenced to death by lethal injection.

People actually support the idea of the death penalty. In reality it's highly selective, takes forever, costs a bundle and they still can’t get it right!

Nunley is not yet able to mark his execution date on his calendar but his partner in crime was executed on Wednesday, February 26th. It took him just under ten minutes to die. Ann Harrison’s father was present at the execution but made no comment after the event.

Taylor and Nunley did it. They confessed to the crime. DNA evidence connects them both to Ann and the basement where she was murdered; there’s no doubt about that. Justice has been served. But whether you believe the death penalty is an appropriate form of punishment or not, the way Missouri’s department of corrections has behaved in the run-up to the execution of Michael Taylor is undignified and embarrassing. 

Missouri is on a roll. Taylor’s execution makes four in as many months. In Taylor’s final appeal, hours before his death, his lawyers demanded to know what drugs would be used to kill him and where they were coming from—facts that the state of Missouri refused to reveal. How could the efficacy of these drugs be verified? Where were they purchased? But although the U.S. Court of Appeals for the Eighth Circuit allowed Missouri to complete the execution as planned, the three judges were clearly not impressed:

'Because Taylor seeks to determine whether the drug to be used in his execution will result in pain or in a lingering death, it bears repeating the importance of the identities of the pharmacists, laboratories, and drug suppliers in determining whether Missouri’s execution of death row inmates is constitutional.'

Michael Taylor was killed with an overdose of the anesthetic pentobarbital. But this dose didn’t come from the manufacturer. In last minute behind-the-scenes shenanigans, the Missouri Department of Corrections was forced to change the supplier of the drug and refused to reveal anything about the new pharmacy or its product. 

There are two main ways of executing a prisoner by lethal injection. The three-drug protocol and the one-drug protocol. The three-drug version begins with an injection of an anesthetic followed by a paralytic agent (a muscle relaxant) to stop breathing and finally a drug to stop the heart. The one-drug protocol is basically fatal overdose of a single sedative/anesthetic.

In the last few years pharmaceutical companies, upset that drugs intended to alleviate pain are being misused in the U.S., have done everything they can to keep their products out of the hands of the executioners. Missouri and the other 34 death penalty states are running out of options.

In 2010 when Hospira, the sole U.S. manufacturers of thiopental sodium—one of the three key drugs in the three drug cocktail preferred for execution in most U.S. states—discovered Ohio’s DOC using their product they took the unusual step of abandoning its production. Hospira states on its website:

‘Hospira makes its products 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.’

What followed was a black comedy of errors. Death penalty states scrambled for fresh supplies and several successfully imported fresh stocks from Europe but that source dried up after European Union governments banned its export, effectively re-licensing the drug as it would arms or munitions. Importing sodium thiopental to the U.S. is actually illegal because its importation has to be approved by the Federal Drugs Administration (FDA). Unbelievably, the FDA turned a blind eye to this breach of law and during a fiasco that ended up in the Federal Appeals court, the court ruled the FDA was in utter‘derogation of its duty’ by allowing the drug into the country untested and the Drug Enforcement Agency (DEA) confiscated the stockpiles. 

All over the country DOCs were getting desperate. Last year Colorado came up empty after sending out a begging letter to compounding pharmacies all over the state to provide the sodium thiopental needed to execute murderer Nathan Dunlap. Governor John Hickenlooper finally stepped in to stop the drama and issued a reprieve for Dunlap.

Missouri switched to a single drug protocol to speed things up. Initially they planned to use the commonly used propofol (the anesthetic that killed Michael Jackson) until not only that manufacturer objected but the Missouri Society of Anesthesiologists complained that the DOC was putting their access to a drug they use for over 95% of their surgeries in danger. They fished around again until they came up with the current favorite, pentobarbital—a drug that is sometimes used for physician-assisted-suicide in Oregon State. Of course the moment pentobarbital’s manufacturers, Lundbeck, got wind of the practice they attempted to cut off the supply. 

It looks like The Missouri DOC did some pretty shady dealing to get hold of the pentobarbital that killed Taylor. Missouri ignored Lunbeck’s wishes and though they won’t reveal the company where they finally obtained the death dose, we do know it was a distributor known as a ‘compounding pharmacy’.

Compounding pharmacies make custom drugs to order. They alter drugs to suit the needs of specific patients, for example they might remove inactive ingredients from a pill if a patient discovers an allergy to part of the medication, say the capsule itself. The drugs are mixed to order, and it stands to reason that a custom batch may have slightly different amounts in each dose and their ingredients might differ from the manufacturer's. Some larger compounding pharmacies have been producing copies of drugs on a much larger scale, creating a gray market. As these ‘pill mills’ aren’t required to meet the same standards the FDA requires of Big Pharma, the legitimacy of these ‘bootleg’ drugs is in question.

In September 2012 the Center for Disease Control (CDC) traced an outbreak of fungal meningitis that killed 64 across 20 states to the New England Compounding Center in Framingham, Massachusetts and though a bill was passed in response to the tragedy, the additional oversight from the FDA still only puts compounding pharmacies on an honor system when it comes to regulation.

The most damning criticism of Missouri’s behavior came from the U.S. Court of Appeals following their dismissal of Taylor’s final appeal. They attacked the state for:

‘..using [a] shadow pharmac[y] hidden behind the hangman's hood' [and using] 'copycat pharmaceuticals' to execute another death row inmate.'

Clearly appalled that Missouri was unable to execute death row inmates with an FDA-approved form of pentobarbital the court suggested the DOC had resorted to:

'[A] pharmacy [that] could be nothing more than a high school chemistry class.'

The DOC should have been transparent about its procedures—Taylor had a right to know. 

In fact the only information released about the Missouri’s drug hunt is from their previous buys. They sent a guard down to Oklahoma with cash, he paid for the drug and drove it back up to Missouri. Not, one might imagine, the usual protocol for states obtaining pharmaceuticals. (AP reports that it cost Missouri $8000 per dose.) That pharmacy wisely stepped away from the furor, leaving Missouri again with an empty syringe.

Add to this the evidence that lethal injections are being carried out by inexperienced DOC personnel who sometimes botch the procedure completely. Missouri does not require physicians to be present at executions. Unsurprisingly, professionals who are ethically bound to protect life are also in short supply when it comes to shooting up a lethal dose, but it is precisely those professionals who are needed to ensure a humane procedure.

In September of 2009 the governor of Ohio halted Ronell Broom's execution after an execution team struggled for two hours to find a vein to end the life of the convicted murderer-rapist. He remains on death row. Could being executed twice be seen as a cruel and unusual punishment?

Americans are slowly turning against the death penalty. 60% of the nation is in favor of execution. That’s the lowest figure since 1972, and only a slim majority now think the sentence is applied fairly.

Richard Dieter from the Death Penalty Information Center says the death penalty is falling apart not from a human rights perspective but a lack of enthusiasm for it.

“There’s too many problems. Lethal injection [of Michael Taylor] is one more example of the ineptitude of the state in carrying out this law. People actually support the idea of the death penalty. In reality, it's highly selective, takes forever, costs a bundle and they still can’t get it right! I think the death penalty is becoming irrelevant.”

Questions surrounding the effectiveness of the drugs, the transparency of their origin and their application are giving more and more death row prisoners an opportunity to appeal their sentences, and rightly so. If we are going to use lethal injection and assume the responsibility of taking a human life then we should take it seriously. If we can’t do it with dignity then perhaps we shouldn’t do it at all. 

Neville Elder is a regular contributor to The Fix. He last wrote about the man behind the first supervised injection site in North America.