Lethal Injection Under Scrutiny

Given the notoriety of the gay marriage cases to be argued next week before the Supreme Court, it is understandable that another case went unnoticed.  That case is Glossip vs. Gross, which comes from Oklahoma dealing with the death penalty.  Richard Glossip was convicted of first degree murder in 1998 and sentenced to death.  Actually, Justin Sneed beat a motel owner to death with a baseball bat but claimed that Glossip promised him $10,000 to do so.  In exchange for his testimony, Sneed was spared the death penalty and sentenced to life in prison.  However, this case is not about Glossip’s potential innocence or guilt, or even his status on death row.  At issue is the protocol of drugs used to execute inmates in Oklahoma.

In 2008, the Court decided the case of Baze vs. Rees which upheld the constitutionality of death by lethal injection.  However, they established a standard that if the protocol presented a “substantial” or “objectionably intolerable” risk of harm, then the protocol would violate the Eighth Amendment’s prohibition against “cruel or unusual punishment.”  In the current case, lawyers for Glossip are arguing that the protocol set forth in Oklahoma does just that because of the first drug administered.

The method used in Oklahoma is the administration of three drugs.  The first is midazolam, an anesthetic that puts the subject to sleep in a deep coma-like state.  Then another paralytic drug is administered followed by potassium chloride which stops the heart.  It is this first drug that is “objectionable.”  Prior to its use, a stronger anesthetic- pentobarbital- was used.  Previously, Florida had adopted using midazolam when executing prisoners with no problems.  In Oklahoma, the protocol “failed” in the much publicized case of Clayton Lockett.  After being administered the second two drugs, Lockett began to writhe in pain on the gurney before being pronounced dead.  This example, Glossip contends, is proof that midazolam should be banned in executions since its analgesic and anesthetic properties are questionable.

The state contends that the botched execution of Lockett was attributable to a bad intravenous flow rather than the drug itself.  As Glossip’s lawyers acknowledge and accept, there was enough midazolam in his blood system to render him unconscious.  Clearly, something had gone wrong, but it was not the drug itself.

So why did Oklahoma stop using other drugs and start using midazolam like Florida?  The answer lies in Europe.  Most drugs used to render inmates unconscious are manufactured in Europe, not the United States.  Hospira, based in Illinois, ceased production of the older anesthetics in 2011 which forced many states to look overseas for supplies of pentobarbital or another substitute.  Hospira’s plant was located in Italy and the Italian government pressured the company to cease production.  In 2011, the European Union also halted the export of any of these drugs to the United States unless strictly regulated and they could not be sold to states for execution purposes.  Other countries soon followed suit.

The European Union’s opposition to capital punishment is no secret.  They regularly appeal to Governors to halt executions and frequently file briefs with the Supreme Court in Eighth Amendment cases.  Sometimes, their views sneak into final opinions, an act sure to gain the wrath of Scalia.  Additionally, the European Union annually donates almost $5 million to anti-death penalty groups.

One of the major problems even with the original drugs is that they have a shelf life of about four years.  The period from sentencing to execution often takes much more than 4 years.  Glossip himself has been on death row for 17 years and counting.  Thus, states that do have supplies often find that they are now obsolete.

Further complicating the issue is the residual effects of the EU ban.  Smaller, non-European Union countries have followed their lead.  For example, in April of 2011 Kayem Pharmaceuticals of India ceased manufacture of pentobarbital and refused to sell its existing stock to the United States.  Arkansas did manage to obtain some from a British firm and then shared it free of charge with Mississippi, Tennessee, and Oklahoma.  However, this ran afoul of trade agreements and they were forced to cease the practice.  Georgia managed to obtain some pentobarbital from Dream Pharmaceuticals operating out of London.  Unfortunately, their offices were found to be a driving school and the DEA confiscated the drugs.  Kentucky surrendered their supply soon thereafter.

The US government did ask Germany to loosen restrictions and sell minimal amounts.  However, they refused on moral grounds.  It was not long before the last major European supplier of pentobarbital- Denmark’s Lundbeck- ceased sales to states or state prisons in the US.  And it is not only the anesthetic that has come under attack.  The primary producer of rocuronium bromide- the second, paralytic drug- is Mylan headquartered in Pennsylvania.  Under pressure from Reprieve, a British human rights organization, German investors sold $70 million in stock in Mylan which then forced the company to scale back production causing shortages of that drug also.

Which brings us to the Oklahoma case.  Glossip’s lawyers argue that the midazolam was chosen for expediency.  The state of Oklahoma notes that the drug has been used successfully in Florida without incident and that they can only point to the Lockett execution.  Glossip’s lawyers counter with examples of botched executions in Arizona and Ohio in the recent past.  But those arguments miss the point since midazolam is not even implicated in those instances.  Thus, the Court is asked to determine if whether a drug is known to have minimal (if any) anesthetic/analgesic use, can it be used in lethal injections?  No one objects to the second two drugs- the paralytic and the drug that stops the heart.  It is simply the drug that renders the inmate unconscious and unable to feel any pain.

No matter what one thinks of the death penalty, one has to give a nod to these organizations for pressuring the manufacturers.  They did so in a largely stealth manner with success.  Regarding the death penalty, no one wants to see the innocent executed.  In fact, despite the huge headlines, less than 5% of those sentenced to death are eventually later exonerated.  In the present case, I do not believe the actual wielder of the baseball bat should have received the life sentence, but that is another question altogether.

More importantly is how one reconciles being pro-life while supporting the death penalty.  The answer is simple- innocence.  Convicted killers are afforded more constitutional rights trying to preserve their life than are innocent unborn babies who do not have slick lawyers looking for legal loopholes to spare their lives.  I personally find it obscene that we spend, on average, $33,000 per year to keep a convicted killer alive while we spend a fraction of that cost on a handicapped child with no say in their fate in life while innocent unborn children are simply tossed into the medical waste can.  The tragedy is not a convicted killer writhing on a gurney in a prison; it is the truly innocent who suffer and have no Leftist human rights organizations to speak for them.  That is how a conservative can be pro-life and pro-capital punishment- innocence.  The Left has no such logic.