"With these words Socrates raised the cup to his lips and very cheerfully and quietly drained it. Up to that time most of us had been able to restrain our tears fairly well, but when we watched him drinking and saw that he had drunk the poison, we could do so no longer, but in spite of myself my tears rolled down in floods, so that I wrapped my face in my cloak and wept for myself; for it was not for him that I wept, but for my own misfortune in being deprived of such a friend.... Socrates walked about and, when he said his legs were heavy, lay down on his back, for such was the advice of the attendant. The man who had administered the poison laid his hands on him and after a while examined his feet and legs, then pinched his foot hard and asked if he felt it. He said “No”; then after that, his thighs; and passing upwards in this way he showed us that he was growing cold and rigid. And again he touched him and said that when it reached his heart, he would be gone. The chill had now reached the region about the groin...after a little while he moved; the attendant uncovered him; his eyes were fixed. And Crito when he saw it, closed his mouth and eyes."
—Plato, Phaedo, transl. Harold North Fowler
The Supreme Court denied a hearing last week on whether the state of Louisiana has a constitutional obligation to disclose the contents of increasingly “experimental” chemical compounds used for intravenous execution. This move was a stopgap on the part of the nine highest justices in the land; they are, for a moment, cautiously deferring any decision about whether state governments must disclose the composition or even the origins of their lethal-injection cocktails.
Small wonder SCOTUS had no interest in committing itself just yet: As traditional death-drugs have receded from the global market in the past three years, the supply-side problem is prompting a slow referendum on the death penalty nationwide.
Meanwhile, states including Oklahoma, Louisiana, Texas, Georgia, and Missouri have established (or are fighting to maintain) veil laws that protect the government from disclosing precise details about drug cocktails, and especially from disclosing which compounding pharmacies (or which foreign companies) are supplying the drugs.
Is the government a bumbling, dysfunctional mess, or else a tight directorate with a judicial wing we can trust in matters of life, death, and inadvertent acts of chemical torture?
Here, death-penalty enthusiasts issue a double-dismissal: There is no evidence that substandard compounds have led to horribly protracted executions; and anyway, even if the condemned are suffering, it's silly to worry about fungal meningitis when you're dispatching fungal humans. Opponents of the death penalty are perhaps equally opportunistic, but their internal logic is more sound: States have no right to protect the secrets of their mystery death-juice, not even in the foulest cases. As for indifference to the suffering of the prisoner? Well, we have this amendment that sits between the seventh and the ninth, and it's pretty straightforward on the question of cruel and unusual punishment.
Recent eyewitness accounts offer a cruel picture indeed. In January, Michael Lee Wilson, an Oklahoma convict executed with pentobarbital, cried out during his last moments: “I feel my whole body burning.” Two years ago in South Dakota, Eric Robert took 20 minutes to die. His face flooded with purple, his breath retched, and he wheezed through his nose. Robert took 20 minutes to die. Three months ago in Ohio, Dennis McGuire set what remains (how long, we shall see) the record, taking a torpid 24 minutes to perish. Alan Johnson from The Columbus Dispatchreports on McGuire's January execution:
After being injected at 10:29 a.m., about four minutes later McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes. His chest heaved and his left fist clinched as deep, snorting sounds emanated from his mouth. However, for the last several minutes before he was pronounced dead, he was still.
By comparison, consider Christian martyrs, witches, et al. from antiquity through the Reformation: Assuming a biggish fire, these poor souls would likely have died from carbon monoxide poisoning before the flesh even began to melt. John Foxe recounts the martyrdom in 1555 of Protestant cleric John Rogers, the first such under the reign of Queen Mary:
[A]nd there in the presence of M. Rochester, Comptroller of the Queenes housholde, Sir Richard Southwell, both the Sheriffes, and a woonderfull number of people, [Rogers] was burned into ashes, washing his handes in the flame as he was in burning.... He was the first Protomartyr of all that blessed company that suffered in Queene Maryes time, that gaue the first aduenture vpon the fire.
Six minutes was a plausible length of agony in these cases—a quarter of Eric Robert’s 24.
Reporting on Wilson's death, Timenoted that pentobarbital's “manufacture is often poorly regulated, and contaminated batches can cause excruciating pain prior to death." The problem here began in Western Europe, where governments tend to consider the death penalty a horror. In November 2010, the United Kingdom began restricting exports of sodium thiopental in cases where the distributor knew or suspected the anesthetic would be the first element of a two- or three-drug lethal cocktail. In July 2011, Lundbeck, the Dutch company that innovated pentobarbital—a related barbiturate—banned the drug's sale and use for U.S. executions. (The Guardian made gallows humor of its subhed: “May deal a fatal blow to capital punishment.”)
Meanwhile, that same year in the states, U.S.-based pharma-giant Hospira stopped synthesizing sodium thiopental at its hub in California; the move was largely an act of public relations: “We have always publicly objected to the use of any of our products in capital punishment,” the company said in a statement. Hospira considered moving production to Italy, but export controls established in 2005 by the European Union had rendered such moves impossible—even for multinationals. Georgia bought a batch of barbiturates from a shady foreign distributor in 2011, and the Feds quickly confiscated it.
As traditional death-drugs have receded from the global market in the past three years, the supply-side problem is prompting a slow referendum on the death penalty nationwide.
The FDA could be moving a whole lot quicker to regulate domestic compounding pharmacies, where many syntheses happen sub rosa and, concomitantly, states push for ever-more-aggressive veil laws to protect U.S. pharmacies from unseemly associations. (The FDA lays out the risks in morbid monotone.) As Georgia Assistant Attorney General Sabrina Graham said in July 2013: "Once that compounding pharmacy's identity is revealed, how will the Department of Corrections ever get another compounding pharmacy to sell to us?"
Anti-secrecy activists are gaining ground in certain regional battles. While Georgia's legislature approved the Lethal Injection Secrecy Act in March, the act will meet various challenges in court, while Patricia Parrish, a county judge in Oklahoma, has ruled that state's secrecy law unconstitutional, halting any executions that involve any “secret, unverified” drug. “I do not think this is even a close call,” Parrish said. A federal appeals court has upheld Missouri's secrecy law, for now.
The Associated Press, meanwhile, has covered the situation in Texas with as much of a sneer as its magisterial lips can muster: When the state attorney general defends Texas's veil of secrecy by alluding to hazy “threats” against pharmacists, the AP counters: “The attorney general said Thursday he was investigating such a threat, but several other law enforcement agencies told the AP his office has never mentioned it.”
Circuit courts across the Bible belt and as far north as Delaware will be hearing further cases about secret drugs and chemical misfires that violate the Eighth Amendment, heinously and vividly. The painful prolonged execution, when it goes wrong, is way worse than cyanide, hemlock, or a bullet to the head. It shouldn't take 25 minutes of hellish chemical torture to kill a rapist—there's a reason Vince Beiser suggested in these pages that we'd be better off with rifles. As of January, Missouri and Wyoming were considering “Firing Squads, Electrocutions, Gas Chambers” as solutions to questionable “customized” mixes that have emerged from compounding pharmacies during the past decade's drug shortage.
But progress through regress is not the answer. The current supply crisis, for all its horrors, offers a moment for refiguring how we think about the death penalty, how we view the role of government. Several states that traffic in unregulated, secret drug purchases are run by governors who have demanded an audit of the Fed, or attorneys general who have sued the Department of Health and Human Services over the Affordable Care Act's alleged “death panels.”
One must ask: Is the government a bumbling, dysfunctional mess, or else a tight directorate with a judicial wing we can trust in matters of life, death, and inadvertent acts of chemical torture? Christopher Hitchens was being very Christopher Hitchens when he called George W. Bush "a guy who signed, with a grin and a smirk, 125 death warrants in a state where everyone knows the criminal justice system is a disgrace ... signing death warrants with relish, having not reviewed the case.” But forget the hyperbole and consider the human element. What's happening behind the veil in these states is not the ineluctable, unerring hand of justice—it's a power structure of careerist political animals, many of whom do not hold a degree in chemistry. Compared to the back-alley swill with which we're dosing our inmates, hemlock—or (say) a blindfold, cigarette, and a dozen M16s—begins to sound a lot like mercy.