The horrifyingly botched execution on Tuesday in Oklahoma—in which the condemned man, Clayton D. Lockett, woke during the lethal injection, called out, writhed in pain, and died of a heart attack after officials tried to halt the execution—is sure to be a touchstone in the long-running national argument over capital punishment. It also revealed the surprisingly jerry-built system that states have come to rely on for procuring the drugs used in lethal injections.
That system has increasingly come to resemble the trade in illegal drugs. Prison officials cross state lines with tens of thousands of dollars in cash to buy sedatives and anesthetics from compounding pharmacies whose identities are concealed. Attorneys for death-row inmates in Oklahoma and elsewhere have been trying to force states to reveal the sources of the lethal-injection drugs, arguing that it’s impossible to know whether the compounds will work as intended without knowing where they came from. Federal agents in 2011 seized Georgia’s supply of a barbiturate, sodium thiopental, after defense attorneys raised concerns about its origins.
There’s clearly cause for concern. The drug cocktail used in executions is supposed to paralyze the condemned and render him unconscious before death, but the Oklahoma case isn’t the only one to fall far short of this standard. In January, a condemned man in Ohio gasped and convulsed for 15 minutes while being put to death. Also in January, an Oklahoma convict’s last words after his lethal injection were, “I feel my whole body burning.”
And compounding pharmacies—special labs that customize drugs for particular clients—have a far from spotless record in quality control. Their lack of regulation and risks came to light in the 2012 meningitis outbreak that spread from one of them.
Again and again, state correctional departments have found themselves stymied by the fact that the supply chains relied on to procure lethal-injection drugs are now international. In 2011, for instance, the U.S. pharmaceutical company Hospira (HSP)announced it would no longer produce Pentothal and pointed to the Italian government’s role in the decision. The company had been planning to produce the drug at a facility in Italy, but officials there made clear their strong disapproval of its use in capital punishment. “[W]e cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment,” Hospira said in its announcement, which noted that the company itself had never intended Pentothal to be used in executions.
At around the same time, according to a report in Newsweek, the Danish pharma company Lundbeck (LUN:DC)revised its American distribution structure to prevent its anesthetic Nembutal from being used in executions, a use it had been unaware of until activists unearthed it.
That’s why the states are fighting so hard to keep their sources secret: As soon as the source or name of a drug used in lethal injection cocktails becomes known, companies scramble to take it off the market or otherwise ensure that it isn’t “diverted,” as Hospira put it, to death row.
This is happening despite the fact that the majority of Americans still approve of capital punishment, although by margins that continue to shrink. Capital punishment is less popular elsewhere and frequently outlawed by developed nations and those places where people don’t like the idea of exporting a product used in what they see as a barbarous practice.
Americans are used to throwing their weight around in the arena of corporate activism, applying the pressure that comes from being the purchaser of Chinese-made electronics or Bangladeshi-made clothes to force those countries to change their laws. State officials in Oklahoma and elsewhere are getting a taste of what that process looks like on the receiving end, with particularly gruesome consequences.