The Executioner's Dilemma
As Emmanuel Hammond lay strapped to a gurney with lethal drugs seeping into his veins, witnesses to his execution could tell something wasn't right. First he closed his eyes. But moments later, they fluttered open.
“Maybe two minutes in, his mouth kind of pulled way over to the side and then relaxed,” recalls his attorney, Sheri Johnson. It moved again, and he took two hard breaths. “To me it looked like pain,” Johnson says. “It looked like a grimace.” It was unlike other executions she'd witnessed, even one that took twenty minutes and required a second dose of lethal drugs. That inmate had closed his eyes and remained motionless a few seconds in. Hammond's execution “was like nothing I have ever seen before.”
A few months earlier, in September 2010, another Georgia prisoner, Brandon Rhode, had died in a similar way. His mother, who at her son's request did not attend his execution, was at a nearby truck stop waiting for it to be over. “When the pastor, Randy Loney, came back,” she told the Guardian, “he told me that Brandon had...maintained eye contact the whole time.” Pastor Loney's account was supported by press reports, which stated that Rhode's eyes stayed open until he was pronounced dead.
Hammond and Rhode were executed, like most death row prisoners, using a deadly combination of three drugs. The first, a barbiturate, is meant to sedate and anesthetize the inmate. The second, pancuronium bromide, causes paralysis. And the third, potassium chloride, stops the heart. For years, autopsies and witness descriptions have shown that the first drug, sodium thiopental, doesn't always work; some prisoners have been conscious, paralyzed and slowly suffocating until the end. Eye movement is one sign that things have gone wrong. Dr. Mark Heath, a physician and anesthesiologist who teaches at Columbia University Medical Center, wrote after Rhode's execution that “it is very unusual and surprising for a prisoner's eyes to remain open after the efficacious administration of thiopental.” The implications were grim. “There is no dispute that the asphyxiation caused by pancuronium [bromide] and the caustic burning sensation caused by potassium [chloride] would be agonizing in the absence of adequate anesthesia,” he wrote.
Concern that prisoners were being tortured to death was at the heart of the landmark 2008 Supreme Court case Baze v. Rees, which sought to decide whether lethal injection as carried out in Kentucky (and most death penalty states) was cruel and unusual punishment. The Court ruled that it was not, denying that lethal injections pose “a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death.” But since then, states have strayed from the process upheld in Baze, partly because of a nationwide shortage of sodium thiopental. Some have sought out dubious new sources of the drug. Others, increasingly, are trading it in for a different one. Nowhere has the process been transparent—and some states appear to have broken federal laws in their rush to execute. As states have tinkered with their lethal formulas, in Georgia the result has been exactly the kind of tortuous executions the Supreme Court deemed unlikely when it upheld lethal injection.
Lawyers for Emmanuel Hammond knew he risked dying an excruciating death. After Rhode's botched execution, they filed an Open Records request to force the Georgia Department of Corrections (GDC) to disclose its source of sodium thiopental, while also requesting a stay of execution. Months later, on January 24, a Superior Court judge directed the GDC to release the records, but denied the stay, citing “no evidence” that the drugs were ineffective. The next day, just before midnight, Hammond was dead.
Their efforts were not in vain. The GDC records traced the drug used to kill Hammond and Rhode to a little-known Britain-based pharmaceutical wholesaler named Dream Pharma Ltd., whose headquarters are a rented space in the back of a driving school in a West London suburb. Its bare-bones website boasts that it can provide “discontinued” and “hard to find” drugs to customers, promising that “confidentiality will remain paramount.” According to e-mail records released to Hammond's attorneys, a Dream Pharma representative wrote in the summer of 2010 that the company would be “more than happy to assist” with Georgia's execution needs. Derrick Schofield, assistant commissioner and chief of staff of GDC, gave the green light for the order, writing, “Make it happen.”
Making it happen, the GDC cut corners. In February attorney John Bentivoglio wrote a letter to US Attorney General Eric Holder on behalf of another Georgia death row prisoner, arguing that the GDC had violated the federal Controlled Substances Act by ordering sodium thiopental directly from Dream Pharma. Classified as a “Schedule III nonnarcotic controlled substance,” he wrote, such a drug can be imported “if and only if advance notice is given to the Attorney General.” The law also makes it illegal to “possess, manufacture, distribute or dispense” controlled substances without a registration from the Drug Enforcement Agency (DEA).
A few weeks later, DEA agents raided the maximum security prison in Jackson, Georgia, seizing the supply of sodium thiopental used to kill Hammond and Rhode. “There were questions about the way the drugs were imported over here,” a DEA spokesperson said. There were also questions about whether the drug, which seemed clearly ineffective, had expired before it got to Georgia. An image of the shipping label from Dream Pharma bears the name of the now defunct Link Pharmaceuticals Ltd., which was bought out by another company in 2006. While the label shows the expiration date as 2014, sodium thiopental has a shelf life of about four years, meaning that even the freshest supply coming from Link would have been spoiled. In February lawyers trying to save the life of Roy Willard Blankenship argued that Georgia's batch of sodium thiopental had “almost certainly” expired. A judge was unconvinced, but the DEA raid would mean their client would live to see another day.
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Georgia was not alone in seeking new sources of sodium thiopental. On January 25, the same day as Hammond's execution, thirteen state attorneys general had written a letter of their own to Holder, with a rather macabre request: they needed assistance putting people to death; could the Department of Justice help?
“The majority of jurisdictions in the United States that include the death penalty as an authorized punishment…including the Federal Government, provide for lethal injection as the prescribed method,” they wrote. With sodium thiopental supplies dwindling, many states “shortly will be unable to perform executions.” The letter asked the Obama administration to identify a new source or else make “supplies held by the Federal Government available to the States.” On March 4, Holder replied with bad news: the government had no reserves of sodium thiopental “and is therefore facing the same dilemma as many states.” Holder described it as a “serious concern.”
How serious seemed questionable. The shortage went back to August 2009, when Hospira Inc., the sole US manufacturer of the drug, announced a temporary halt after one of its suppliers stopped making a crucial ingredient. Hospira planned to resume production by moving operations to a plant in Italy, but under pressure from the Britain-based human rights group Reprieve, the Italian government refused to facilitate the export of drugs to be used in executions. This past January, Hospira announced that it would stop production of sodium thiopental altogether.
Meanwhile, other states had already turned to Dream Pharma. Documents obtained in January by the ACLU of Northern California unearthed a trail of e-mails between numerous state authorities beginning in the summer of 2010 showing wide efforts to find sodium thiopental wherever they could, including asking local hospitals. A shipping invoice obtained by Reprieve revealed that Arizona had ultimately placed an order from Dream Pharma, which was shipped to the Arizona State Prison Complex on September 28. Part of the stash was sent to California. (“You guys in AZ are life savers,” one California official wrote.) Another portion was used to kill Jeffrey Landrigan a few weeks later, despite his lawyers' protests that Arizona “provided no information regarding the integrity of the drug.” Afterward, his attorney described his execution. “Mr. Landrigan's eyes were still open,” he said.
In London, the botched executions of Rhode, Hammond and Landrigan gave Reprieve sufficient ammunition to persuade British authorities to forbid the export of drugs for US executions—a ban announced on November 29. But days later, another foreign shipment of sodium thiopental arrived in the United States, in Nebraska. The source was an Indian company called Kayem Pharmaceuticals, based in Mumbai. In February, Kayem shipped another stash, this time to South Dakota.
Like Dream Pharma, Kayem's headquarters are unimpressive, “a two-room…office and storeroom with a balcony that doubles as a kitchen,” according to the Times of India, which was told by Kayem's director, Navneet Verma, “several American states have now approached us for sodium thiopental.” Days after that story broke, however, and after a news conference held in India by Reprieve, Verma reversed course. "I will be requesting my buyers to declare that they will not be using [the drug] for the lethal purposes,” he said.
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As some states bought sodium thiopental overseas, others were busy reworking their formulas. The first to do so was Ohio, which, after a series of grisly botched executions of its own, changed its protocol from the common three-drug “cocktail” to a single deadly dose of sodium thiopental in 2009. In light of the shortage, however, Ohio announced that it would replace the drug with a fast-acting barbiturate called pentobarbital, mostly used for euthanizing animals. Pentobarbital had never been used on its own for executions. This past March, Ohio killed Johnnie Baston using the sole new drug, despite pleas from his victim's family that his life be spared.
Soon after that, Texas, the death penalty capital of the United States, announced that it, too, would switch to pentobarbital. Attorneys for Cleve Foster, scheduled to die on April 5, protested that the drug had been adopted in secret, and they scrambled to halt his execution. Their case was bolstered by a new report by the ACLU of Texas and Northwestern University noting that “the manner in which Texas carries out the execution of human beings is riskier, less transparent, and has less oversight than the euthanasia of cats, dogs, birds, and lizards.”
There were other problems. Records obtained by Foster's attorneys showed that authorities had not only violated Texas's Administrative Procedures Act by adopting a new execution drug without public comment but also violated the Controlled Substances Act by using a bogus DEA registration number to obtain it. As Foster's attorney, Maurie Levin, explained on the eve of his scheduled execution, purchase documents had inadvertently revealed a DEA registration code. “We ran [the number] and it appeared to be registered to the Huntsville Unit Hospital, a notorious institution that was closed down in 1983,” Levin said. DEA registration codes are supposed to be renewed every three years. In a letter to Eric Holder, Foster's attorneys argued that the outdated DEA number was proof that the Texas Department of Criminal Justice had been “purchasing and dispensing controlled substances with a DEA registration number registered to a nonexistant entity” for twenty-eight years. Holder did not intervene, but on April 5, the US Supreme Court stayed Cleve Foster's execution on unrelated grounds. “To be so determined to carry out an execution at all cost—the impunity, the lawlessness—to me that's the thing that is the most striking,” Levin said.
Legal challenges have not been able to stop executions using pentobarbital, and the Obama administration has mostly stayed out of the way. On May 4, Texas killed its first prisoner using the drug, and two days later South Carolina followed suit. Georgia and Virginia have switched to pentobarbital, and Alabama, Tennessee and Kentucky, whose supplies of sodium thiopental were also seized by the DEA earlier this year, are poised to do the same. Reprieve is targeting the Danish company Lundbeck, which has sold pentobarbital to several states despite lingering questions about its use to kill human beings. “I would say it has not been vetted,” says Levin. “It certainly hasn't been vetted in Texas.” Clive Stafford Smith, the director of Reprieve, calls it “human experimentation.”
“It's sort of tragic that the only way we're going to find out just how painful the process is by killing some people,” he says. Fordham law professor Deborah Denno, a leading legal scholar on lethal injection, points out another serious concern.
“Baze said that any other [lethal injection] protocol had to be 'substantially similar' to what Kentucky was using. And some of these are not substantially similar protocols,” she says. “In a right world, the Supreme Court should be hearing that.”
Support for this article came from the Wallace Global Fund.