by Chad Marks

Through December 31, 2018, there have been 1,490 executions in the U.S. since the death penalty was reinstated in 1977. Almost 90 percent have been carried out by lethal injection, which is considered more humane than hanging, electrocution or the gas chamber. But executions have not gone without problems. Through 2010, it was estimated that seven percent of lethal injections were blundered, causing pain to the prisoner before he died.

Until 2009 most states performed executions using the same three-drug protocol: a barbiturate as an anesthetic, a paralytic to prevent body movement and potassium chloride to induce cardiac arrest. But one by one, every supplier approved by the federal Food and Drug Administration (FDA) has imposed distribution controls on its products to block their use in executions. As a result, states began to experiment with different lethal injection drugs. [See: PLN, June 2017, p.14; July 2016, p.58; Mar. 2014, p.46; Nov. 2012, p.44; June 2011, p.1].

One of those alternative drugs is midazolam. In April 2014, Oklahoma’s Department of Corrections (DOC) attempted to use midazolam to execute Clayton Darrell Lockett, 38, who had been sentenced to death for the 1999 murder of 19-year-old Stephanie Neiman. Lockett raped her, shot her twice with a shotgun and buried her alive. Witnesses to his execution watched Lockett struggle in agony before the procedure was aborted. He died 43 minutes later from a heart attack. [See: PLN, Sept. 2016, p.52; Oct. 2015, p.44].

In 2017, eleven executions were conducted using midazolam. In seven of those state-sanctioned killings, witnesses reported the prisoners winced, gasped and clenched their fists as they experienced labored breathing, heaving and convulsions. Midazolam is manufactured by New Jersey-based Alvogen and it is distributed in the U.S. by McKesson. The drug is intended for use in anesthesia, though in smaller doses it is also used to treat seizures and even sleeping problems. Neither company wants the drug used in lethal injections.

Alvogen sued the Nevada DOC in July 2018 to prevent it from using midazolam in an execution, claiming the state obtained the drug under false pretenses. A year earlier, McKesson had filed a similar challenge against the Arkansas DOC, which lost the first round of litigation but prevailed on appeal to the state Supreme Court. 

By then, however, Arkansas’ supply of the drug was so near its expiration date that Governor Asa Hutchinson tried to rush eight prisoners to execution in ten days before the shelf life of the state’s drug supply ran out at the end of April 2017. Four of the eight prisoners were put to death. [See: PLN, Feb. 2018, p.24].

In July 2018, Governor Hutchinson put his backing behind a law making its way through the legislature to shield the state’s DOC from releasing information about its execution drug protocol. The state has no more executions scheduled, but five death row prisoners have sued to prevent any future use of midazolam. 

As part of that lawsuit, the prisoners subpoenaed information from the Texas Department of Criminal Justice (TDCJ) about its use of pentobarbital in a single-drug execution protocol, which they sought to prove is a more humane alternative to midazolam. The TDCJ refused to release the name of the pharmacy that provides the drug, since public identification of the state’s previous source, the Woodlands Compounding Pharmacy, caused so much negative publicity that the company demanded the return of its drugs in 2013. 

In August 2018, Texas U.S. District Court Judge Sim Lake ruled in favor of the TDCJ, citing the testimony of “Pharmacy X” that it would stop selling midazolam to the state if its identity were revealed. Lake said that because there were other drugs available to reduce their pain, the prisoners had failed to prove a “substantial risk of serious harm” sufficient to sustain their challenge based on the Eighth Amendment’s prohibition against cruel and unusual punishment.

Also in August 2018, Alvogen’s lawsuit against Nevada was joined by London-based Hikma Pharmaceuticals after its drug, fentanyl – the primary driver of the current U.S. opioid crisis – was used in an execution for the first time in Nebraska. Like Alvogen, Hikma does not want its drugs used in lethal injections, so it added the Nebraska Department of Correctional Services as a defendant in the suit. By that time, though, Nebraska had withstood two court challenges filed by fentanyl’s Germany-based distributor, Fresenius Kabi, which claimed the state had obtained the drug “through improper or illegal means.” 

On August 14, 2018, Nebraska used fentanyl to execute Cary Dean Moore, 60, who was sentenced to death for killing two Omaha cab drivers in 1979. It was the state’s first execution in 21 years, and Moore said he wanted no intervention to delay his death. State lawmakers had voted in 2015 to abolish capital punishment, overriding a veto by Governor Pete Ricketts, but a 2016 ballot initiative largely financed by Ricketts’ family successfully reinstated executions. 

Calling the companies’ lawsuits “guerilla war against the death penalty,” Idaho Attorney General Lawrence Wasden joined the top lawyers of 14 other states to wade into the dispute on behalf of Nevada’s DOC, after a judge ruled in May 2018 that Idaho’s prison system must release details of the drugs it used to execute Paul Ezra Rhoades in 2011 and Richard Leavitt the following year.

Rhoades, 54, was sentenced to death for the 1987 kidnapping and murder of Susan Michelbacker, 34, and Stacey Dawn Baldwin, 21. Leavitt, 53, received his capital sentence for the fatal 1984 stabbing and mutilation of Danette Elg. Idaho has nine prisoners on death row; it has conducted just three executions since 1977, the last being Leavitt’s in 2012. 

That same year the state switched to a single-drug lethal injection protocol using pentobarbital, but its manufacturer, Lundbeck, has been blocked from selling the drug for use in executions by a law in its home country of Denmark. What drugs the state DOC has on hand for future lethal injections is unclear.

A new trial on the issue was ordered in September 2018 by Ada County, Idaho District Judge Lynn Norton, to whom DOC Deputy Director Jeff Zmuda testified that releasing the drug information would “jeopardize” future executions by placing pharmaceutical companies under “significant harassment and pressure” to block the use of their products in lethal injections. 

That was the same argument put forward by Indiana’s DOC, as well as its state House Speaker, Brian Bosma, during a September 2018 hearing in a lawsuit filed by Washington, D.C. attorney A. Katherine Toomey, who challenged a 2017 Indiana law that not only protects information about drugs used in executions but also makes the protection retroactive.

In 2016, Marion County Circuit Court Judge Sheryl Lynch granted summary judgment to Toomey and ordered the release of the lethal injection drug information; that order withstood an appeal and was not taken up by the Indiana Supreme Court. But state officials asked Judge Lynch to review that ruling in light of the new 2017 law. The state has nine prisoners on death row but no scheduled executions.

The Indiana case follows another in Alabama, where Chief U.S. District Court Judge Karon O. Bowdre ordered the state’s DOC in May 2018 to release more information about its execution protocol. That order followed a botched attempt to execute Doyle Lee Hamm, 61, who was sentenced to death for the 1987 murder of Patrick Cunningham, a clerk at a Cullman motel that Hamm was attempting to rob. Hamm survived the procedure and will not face another execution. [See: PLN, Dec. 2018, p.36].

Most states have laws to protect the privacy of prison staff who participate in lethal injections. [See. e.g.: PLN, Dec. 2007, p.19]. And since 2011, at least four states have passed laws providing civil or criminal penalties for disclosing information regarding executions. Nine other states passed laws to veil executions from the public. Not one state during that time period sought to ensure that witnesses could see or hear the entire lethal injection process, and many states prevent witnesses from viewing most of the process – though there have been some successful court challenges to such secrecy. [See: PLN, July 2013, p.48].

Ritchie Eppink, legal director for the Idaho chapter of the ACLU, said the reason why states argue against transparency is “because they’d be disclosing information that the public’s just not comfortable with and that’s why we have the public records act in the first place.”

In 2018, the Death Penalty Information Center argued that by “[obtaining] drugs from questionable sources” and even “swapping drugs with each other” in violation of federal law, states have violated the law and “deliberately induced contract breaches” when they have “lied to or misled” suppliers of the drugs they use for lethal injections. Further, as a result of this lack of transparency, prisoners on death row are denied critical information needed to challenge whether the execution protocol they face is constitutional. 

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Sources: Indianapolis Star, Arkansas Times, www.al.com, www.boisestatepublicradio.org, www.courthousenews.com, www.deathpenaltyinfo.org, www.thecrimereport.org

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