Death penalty: Some of the drama is in the details

  • Article by: MARY SANCHEZ , Kansas City Star
  • Updated: February 3, 2014 - 6:36 PM

A complicated market for the killing drugs has states pushing the definition of ‘cruel and unusual’ on death row.

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Photo: Lee Hulteng • MCT,

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Americans have developed a nearly insatiable appetite for morbid details about crime, as any number of docudramas, Netflix series and Hollywood movies attest.

There is one notable exception: executions. Here, we’d just rather not know too much about current practices. Better to just think of prisoners quietly going to sleep, permanently.

The blind eye we turn to techniques of execution is giving cover to disturbing changes with lethal injection. The drugs that traditionally have been used to create the deadly “cocktail” administered to the condemned are becoming harder to get. Major manufacturers are declining to supply them for executions, and that has led states to seek other options.

This raises questions about how effective the lethal drugs will be. At least one execution appears to have been botched. In January, an inmate in Ohio was seen gasping for more than 10 minutes during his execution. He took 25 minutes to die. The state had infused him with a new cocktail of drugs not previously used in executions.

States have been forced to turn to relatively lightly regulated “compounding pharmacies,” companies that manufacture drugs usually for specific patient uses. And they’d rather you not ask for details.

Death-row inmates and their attorneys, on the other hand, are keenly interested in how an approaching execution is going to be carried out. Will it be humane and painless or cruel and unusual?

Lawyers for Herbert Smulls, a convicted murderer in Missouri, challenged the compound drug he was due to be given, but the Supreme Court overturned his stay of execution. A district court had ruled that Missouri had made it “impossible” for Smulls “to discover the information necessary to meet his burden.” In other words, he was condemned to die, and there was nothing that attorneys could do, because of the secrecy.

Smulls was executed last week.

Missouri, which has put three men to death in three months, continues shrouding significant details about where the drugs are manufactured and tested. In December, a judge at the Eighth U.S. Circuit of Appeals wrote a scathing ruling terming Missouri’s actions as “using shadow pharmacies hidden behind the hangman’s hood.”

States long have taken measures to protect the identities of guards and medical personnel directly involved with carrying out death-penalty convictions — a sensible protection. But Missouri claims that the pharmacy and the testing lab providing the drugs are also part of the unnamed “execution team.”

That’s a stretch. The reasoning is less about protecting the firm and more about protecting the state’s death penalty from scrutiny.

Yet states really are in a bind. European manufacturers no longer want to be involved in the U.S. market for killing people. So they have cut off exports of their products to U.S. prisons.

First, sodium thiopental — a key to a long-used lethal injection cocktail — became unavailable. Next, the anesthetic propofol was no longer available. At one point, Missouri was in a rush to use up its supply before it reached its expiration date. Next, the state switched to pentobarbital.

Along with many of the more than 30 states that have the death penalty, Missouri is jumping to find new drugs and chasing down new ways to manufacture them.

Information emerged that at least some of Missouri’s lethal drug supply was tested by an Oklahoma analytical lab that had approved medicine from a Massachusetts pharmacy responsible for a meningitis outbreak that killed 64 people.

For those who glibly see no problem here, remember that the U.S. Constitution protects its citizens from “cruel and unusual punishment.” But attorneys for death-row inmates are finding that they can’t legally test whether a new compounded drug meets that standard, because key information is being withheld. Besides, we citizens have a right to know how the death penalty is carried out.

All of this adds to the growing case against the death penalty, showing it as a costly and irrational part of the criminal-justice system. We know that the threat of it is not a deterrent. We know that it is far more costly to litigate than to seek sentences for life with no parole. We know that extensive appeals are excruciating for the families of murder victims. And we know that some of society’s most unrepentant, violent killers somehow escape it.

And now we’ve got states going to extremes to find the drugs — and to hide information about how they got them — just to continue the killing.

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