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Exclusive: Review finds executions taking up to 20 minutes longer since EU boycott of lethal drugs leads states to employ other methods
Dennis McGuire took up to 25 minutes to die in Ohio on 16 January having been injected with an experimental cocktail. Photograph: AP
US death penalty states face a deepening crisis in their struggle to procure medical drugs for use in lethal injections, with new evidence that the increasingly random methods being used are subjecting condemned prisoners to prolonged and possibly excruciating deaths.
A Guardian survey of death sentences carried out over the past three years by Texas – the most prolific of all execution states – has found that the procedure now takes on average twice as long as under previous protocols. A study of Texas department of criminal justice records and eyewitness media reports mainly from the Associated Press shows a notable lengthening of the death process following the switch in July 2012 from the conventional three-drug cocktail to a single drug, pentobarbital.
Ten executions prior to the change took on average 10 minutes to complete, ranging from nine to 11 minutes between the administration of the lethal injection and the declaration of death.
The next 23 executions using only pentobarbital took on average 20 minutes, with the full range between 12 to 30 minutes.
Suzanne Basso is scheduled next Wednesday to become the 510th prisoner to be executed by Texas in the modern era. Texas has eight executions set between next week and 29 May. A spokesman for the Texas Department of Criminal Justice declined to comment.
As with most other death penalty states, Texas has dwindling supplies of fatal drugs caused by a worldwide ethical boycott of US departments of corrections by pharmaceutical companies and countries. It was revealed last October that after running low on its pentobarbital stock because of the boycott, Texas turned to a pharmacy near Houston to make a compounded version of the drug. Four men have been executed using this compound pentobarbital, with a declaration of death taking between 11 and 19 minutes.
Lethal injection is the only execution method allowed under Texas law. In 1982, Texas became the first US state to use it. Until July, 2012 it used a combination of a muscle relaxant (pancuronium bromide), an anesthetic (sodium thiopental) and a drug used to stop the heart (potassium chloride). In 2011 sodium thiopental became unavailable because of a European boycott and was replaced with pentobarbital.
On Wednesday night, Missouri put to death convicted murderer Herbert Smulls, 56, using a batch of 10mg of pentobarbital it obtained from a compounding pharmacy 400 miles away in Oklahoma. Missouri authorities had sought to keep the identity of the Tulsa-based Apothecary Shoppe secret, provoking protests from Smulls's lawyers who said that they were being prevented from protecting him against possible cruel and unusual punishment.
The sourcing of the drugs from an out-of-state pharmacy that was not licensed in Missouri was also legally questionable, the defence lawyers said.
Cheryl Pilate, a member of Smulls's legal team, told the Guardian after the execution that her client's first amendment rights had been violated. “If they are going to put these compounding pharmacies behind a wall of secrecy and protect them from public scrutiny, that's just not going to work. We live in a society that believes in the people's right to know what their government is doing in their name, and that gives individuals the right to protect themselves against the wrongful actions of the state – both of which were violated in this case.
Pilate was aware of the identity of the compounding pharmacy that had supplied the lethal pentobarbital, but was ordered by a federal court to abstain from carrying out any legal investigation into the quality of the drug or the standards maintained by the drug outlet.
On Wednesday night, the New York Times editorial board lambasted states for using the largely unregulated compounding industry to deliver “new and untested drug protocols developed on the fly and under a cowardly shroud of secrecy”.
Surveys in several states have pointed to widespread problems in the potency and purity of drugs produced by compounding pharmacies, which are only lightly regulated and do not have to answer to the federal Food and Drug Administration. A survey revealed that one in four samples from Missouri failed to meet adequate standards.
Following the death of Smulls, the spotlight now turns to Louisiana, which has scheduled the execution of child-killer Christopher Sepulvado for next Wednesday. With only six days to go, the department of corrections has still not succeeded in obtaining a supply of lethal chemicals for use in the procedure.
Local newspapers revealed that Louisiana has also tried to procure compounded pentobarbital from the Apothecary Shoppe, despite the fact that the pharmacy is not licensed in Louisiana and is therefore not lawfully allowed to distribute in the state. The Apothecary Shoppe initially denied to the Guardian any involvement with departments of correction in any state, but once its name had been made public the pharmacy declined to answer any further questions relating to death penalty drugs.
In the absence of a ready supply of pentobarbital, Louisiana has turned to a two-drug method for killing Sepulvado that has only been used once before, in a case in which the prisoner endured an abnormally long and apparently traumatic death. Dennis McGuire took up to 25 minutes to die on 16 January having been injected with an experimental cocktail of midazolam and hydromorphone.
For up to 15 minutes he was seen gasping for air, writhing, and trying to sit up. A Catholic priest who witnessed the events described what he saw as “ghastly and inhumane”, and McGuire's family is suing the state for undue cruelty.
Sepulvado, 70, was put on death row for the 1992 killing of his six-year-old stepson Wesley Mercer. The condemned man's lawyers are calling for the execution to be postponed to give them more time to investigate the impact of the experimental two-drug protocol, the source of the lethal drugs and whether or not Sepulvado faces possible cruel and unusual punishment which is banned under the eighth amendment of the US constitution.
Gary Clements, one of the lawyers representing Sepulvado, said they were totally in the dark about what drugs Louisiana would use should the execution go ahead next week. “We have been left with no knowledge of what they are going to, and so we have no idea whether this rushed new plan will meet any basic dignified standards.”
Clements added that he was puzzled that Louisiana had opted to copy Ohio's botched experiment. “Why would they to for inspiration to a place where the only time this method was used in the history of the United States it led to a gruesome spectacle?”
The increasingly desperate attempts by death penalty states to acquire medicines to kill their inmates is the result of an ethical boycott led by the European Commission and many of the major pharmaceutical giants that have expressed their disgust at products created to heal patients being used instead to kill. The boycott has starved states of their supply of drugs such as sodium thiopental – a barbiturate that was until 2011 widely used in triple lethal injections – and now its replacement, pentobarbital.
“The whole idea of the three-drug process is that it would be quick,” said Richard Dieter, executive director of the Washington-based Death Penalty Information Center. “If it should get a lot longer the purpose of doing [lethal injections] for appearance would disappear … if they get longer I think everybody gets a bit uncomfortable.”
Dieter said it was likely that there would have to be substantial evidence that death by lethal injection had become excessively long and painful before a court might consider taking action and public opinion would turn. A lengthier execution does not automatically equate to more suffering if the inmate quickly loses consciousness, he pointed out.
Dr Joel Zivot, assistant professor of anesthesiology and surgery at Emory University School of Medicine in Atlanta, said that it is difficult, if not impossible, to draw definitive conclusions about the suffering of prisoners because of a lack of research and since “lethal injection is in no way a medical act … this is medicine that's now used for non-medical purposes.”
Zivot said it is theoretically possible that using pentobarbital “could result in a situation where a person could be aware and struggle for a period of time” and that no one “can ever guarantee that there won't be the potential for cruelty” in the lethal injection process.
When drugs are used to paralyse prisoners during executions, he said, a lack of movement and the outward appearance of calm should not be viewed as clear evidence that the person is not alert and not experiencing pain.
A person's age and weight could be factors in the length of time it takes for a fatal dose of pentobarbital to complete its work. Texas reportedly uses 5g per execution, with another 5g available in the death chamber if necessary.
In two examples which indicate how execution lengths have varied widely since the move to single-drug, 33-year-old Mario Swain was put to death on 8 November, 2012, for the murder of a woman a decade earlier. It reportedly took 30 minutes for Swain to be pronounced dead. Only two weeks earlier, on 24 October, 40-year-old Bobby Hines was declared dead after twelve minutes.
The growing randomness of execution protocols forced by the boycott has led to parallels being drawn with 1972, when the US supreme court imposed a moratorium on the death penalty across the country. The highest judicial panel in the nation ruled in Furman v Georgia that capital punishment was so inconsistent in its application in different parts of the US that it was unconstitutional.
The court lifted the moratorium in 1976 after death penalty states promised to adhere to new guidelines. One of the changes that emerged was the use of pharmaceuticals in lethal injections that were first used to kill Charles Brooks in Texas in 1982.
The current mayhem over lethal injections has led some prominent public figures to say that the US supreme court should consider imposing a new moratorium. Former president Jimmy Carter told the Guardian last year: “It’s time for the supreme court to look at the totality of the death penalty once again.”
Dennis McGuire took up to 25 minutes to die in Ohio on 16 January having been injected with an experimental cocktail. Photograph: AP
US death penalty states face a deepening crisis in their struggle to procure medical drugs for use in lethal injections, with new evidence that the increasingly random methods being used are subjecting condemned prisoners to prolonged and possibly excruciating deaths.
A Guardian survey of death sentences carried out over the past three years by Texas – the most prolific of all execution states – has found that the procedure now takes on average twice as long as under previous protocols. A study of Texas department of criminal justice records and eyewitness media reports mainly from the Associated Press shows a notable lengthening of the death process following the switch in July 2012 from the conventional three-drug cocktail to a single drug, pentobarbital.
Ten executions prior to the change took on average 10 minutes to complete, ranging from nine to 11 minutes between the administration of the lethal injection and the declaration of death.
The next 23 executions using only pentobarbital took on average 20 minutes, with the full range between 12 to 30 minutes.
Suzanne Basso is scheduled next Wednesday to become the 510th prisoner to be executed by Texas in the modern era. Texas has eight executions set between next week and 29 May. A spokesman for the Texas Department of Criminal Justice declined to comment.
As with most other death penalty states, Texas has dwindling supplies of fatal drugs caused by a worldwide ethical boycott of US departments of corrections by pharmaceutical companies and countries. It was revealed last October that after running low on its pentobarbital stock because of the boycott, Texas turned to a pharmacy near Houston to make a compounded version of the drug. Four men have been executed using this compound pentobarbital, with a declaration of death taking between 11 and 19 minutes.
Lethal injection is the only execution method allowed under Texas law. In 1982, Texas became the first US state to use it. Until July, 2012 it used a combination of a muscle relaxant (pancuronium bromide), an anesthetic (sodium thiopental) and a drug used to stop the heart (potassium chloride). In 2011 sodium thiopental became unavailable because of a European boycott and was replaced with pentobarbital.
On Wednesday night, Missouri put to death convicted murderer Herbert Smulls, 56, using a batch of 10mg of pentobarbital it obtained from a compounding pharmacy 400 miles away in Oklahoma. Missouri authorities had sought to keep the identity of the Tulsa-based Apothecary Shoppe secret, provoking protests from Smulls's lawyers who said that they were being prevented from protecting him against possible cruel and unusual punishment.
The sourcing of the drugs from an out-of-state pharmacy that was not licensed in Missouri was also legally questionable, the defence lawyers said.
Cheryl Pilate, a member of Smulls's legal team, told the Guardian after the execution that her client's first amendment rights had been violated. “If they are going to put these compounding pharmacies behind a wall of secrecy and protect them from public scrutiny, that's just not going to work. We live in a society that believes in the people's right to know what their government is doing in their name, and that gives individuals the right to protect themselves against the wrongful actions of the state – both of which were violated in this case.
Pilate was aware of the identity of the compounding pharmacy that had supplied the lethal pentobarbital, but was ordered by a federal court to abstain from carrying out any legal investigation into the quality of the drug or the standards maintained by the drug outlet.
On Wednesday night, the New York Times editorial board lambasted states for using the largely unregulated compounding industry to deliver “new and untested drug protocols developed on the fly and under a cowardly shroud of secrecy”.
Surveys in several states have pointed to widespread problems in the potency and purity of drugs produced by compounding pharmacies, which are only lightly regulated and do not have to answer to the federal Food and Drug Administration. A survey revealed that one in four samples from Missouri failed to meet adequate standards.
Following the death of Smulls, the spotlight now turns to Louisiana, which has scheduled the execution of child-killer Christopher Sepulvado for next Wednesday. With only six days to go, the department of corrections has still not succeeded in obtaining a supply of lethal chemicals for use in the procedure.
Local newspapers revealed that Louisiana has also tried to procure compounded pentobarbital from the Apothecary Shoppe, despite the fact that the pharmacy is not licensed in Louisiana and is therefore not lawfully allowed to distribute in the state. The Apothecary Shoppe initially denied to the Guardian any involvement with departments of correction in any state, but once its name had been made public the pharmacy declined to answer any further questions relating to death penalty drugs.
In the absence of a ready supply of pentobarbital, Louisiana has turned to a two-drug method for killing Sepulvado that has only been used once before, in a case in which the prisoner endured an abnormally long and apparently traumatic death. Dennis McGuire took up to 25 minutes to die on 16 January having been injected with an experimental cocktail of midazolam and hydromorphone.
For up to 15 minutes he was seen gasping for air, writhing, and trying to sit up. A Catholic priest who witnessed the events described what he saw as “ghastly and inhumane”, and McGuire's family is suing the state for undue cruelty.
Sepulvado, 70, was put on death row for the 1992 killing of his six-year-old stepson Wesley Mercer. The condemned man's lawyers are calling for the execution to be postponed to give them more time to investigate the impact of the experimental two-drug protocol, the source of the lethal drugs and whether or not Sepulvado faces possible cruel and unusual punishment which is banned under the eighth amendment of the US constitution.
Gary Clements, one of the lawyers representing Sepulvado, said they were totally in the dark about what drugs Louisiana would use should the execution go ahead next week. “We have been left with no knowledge of what they are going to, and so we have no idea whether this rushed new plan will meet any basic dignified standards.”
Clements added that he was puzzled that Louisiana had opted to copy Ohio's botched experiment. “Why would they to for inspiration to a place where the only time this method was used in the history of the United States it led to a gruesome spectacle?”
The increasingly desperate attempts by death penalty states to acquire medicines to kill their inmates is the result of an ethical boycott led by the European Commission and many of the major pharmaceutical giants that have expressed their disgust at products created to heal patients being used instead to kill. The boycott has starved states of their supply of drugs such as sodium thiopental – a barbiturate that was until 2011 widely used in triple lethal injections – and now its replacement, pentobarbital.
“The whole idea of the three-drug process is that it would be quick,” said Richard Dieter, executive director of the Washington-based Death Penalty Information Center. “If it should get a lot longer the purpose of doing [lethal injections] for appearance would disappear … if they get longer I think everybody gets a bit uncomfortable.”
Dieter said it was likely that there would have to be substantial evidence that death by lethal injection had become excessively long and painful before a court might consider taking action and public opinion would turn. A lengthier execution does not automatically equate to more suffering if the inmate quickly loses consciousness, he pointed out.
Dr Joel Zivot, assistant professor of anesthesiology and surgery at Emory University School of Medicine in Atlanta, said that it is difficult, if not impossible, to draw definitive conclusions about the suffering of prisoners because of a lack of research and since “lethal injection is in no way a medical act … this is medicine that's now used for non-medical purposes.”
Zivot said it is theoretically possible that using pentobarbital “could result in a situation where a person could be aware and struggle for a period of time” and that no one “can ever guarantee that there won't be the potential for cruelty” in the lethal injection process.
When drugs are used to paralyse prisoners during executions, he said, a lack of movement and the outward appearance of calm should not be viewed as clear evidence that the person is not alert and not experiencing pain.
A person's age and weight could be factors in the length of time it takes for a fatal dose of pentobarbital to complete its work. Texas reportedly uses 5g per execution, with another 5g available in the death chamber if necessary.
In two examples which indicate how execution lengths have varied widely since the move to single-drug, 33-year-old Mario Swain was put to death on 8 November, 2012, for the murder of a woman a decade earlier. It reportedly took 30 minutes for Swain to be pronounced dead. Only two weeks earlier, on 24 October, 40-year-old Bobby Hines was declared dead after twelve minutes.
The growing randomness of execution protocols forced by the boycott has led to parallels being drawn with 1972, when the US supreme court imposed a moratorium on the death penalty across the country. The highest judicial panel in the nation ruled in Furman v Georgia that capital punishment was so inconsistent in its application in different parts of the US that it was unconstitutional.
The court lifted the moratorium in 1976 after death penalty states promised to adhere to new guidelines. One of the changes that emerged was the use of pharmaceuticals in lethal injections that were first used to kill Charles Brooks in Texas in 1982.
The current mayhem over lethal injections has led some prominent public figures to say that the US supreme court should consider imposing a new moratorium. Former president Jimmy Carter told the Guardian last year: “It’s time for the supreme court to look at the totality of the death penalty once again.”
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