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Just a few hours before convicted serial murderer Joseph Paul Franklin was scheduled to be executed by lethal injection on Nov. 19, 2013, two federal judges granted a stay. Then that stay was reversed by the U.S. Supreme Court. And then Franklin was executed.

But, even though the eventual outcome—another state-sponsored execution—was a defeat for those of us who oppose capital punishment—the controversy surrounding the case gives us a glimmer of hope that new concerns about lethal-injection drugs might lead to the eventual end of the death penalty in the U.S.

Missouri’s rush to execution

In the run-up to Franklin’s execution, Missouri—under legal, medical and international pressure—had to scramble to find a way to make it happen.  Franklin was the first Missouri inmate scheduled to be put to death under the state’s newly minted execution protocol. According to Yahoo News:

In October 2013, the state changed its rules to allow for a compounded pentobarbital—a short-acting barbiturate—to be used in a lethal dose for executions.

Missouri was forced to change its prescribed death drug because the German company that manufacturers propofol—the drug Missouri had planned to use—objected to its use in executions.

More specifically, earlier this year, Missouri sent back a shipment of propofol that it had planned to use for executions.

Fresenius Kabi, by far the largest supplier of  Propofol to the US, instructed its distributors last August not to ship the drug to any departments of corrections in the country after several states said they planned to use it for lethal injection. But the Louisiana-based distribution company, Morris & Dickson LLC, sent the shipment to the Missouri Department of Corrections by mistake.

“We learned about such plans of certain states in the US to use Propofol for executions last year. And this was when we implemented tighter distribution controls,” said Matthias Link, a spokesman for Fresenius Kabi. The company’s concern is that Propofol, if used for executions, could be placed on the EU’s list of export restricted substances under the so-called Torture Regulation, which would then severely restrict US access to the popular drug. [Propofol is the most widely used surgical anesthetic in the U.S., with an estimated 50 million dosages per year.]  Capital punishment is illegal throughout the EU.

Were Propofol to be classified under the Torture Regulation, Link explained, it would mean layers of added bureaucracy and three to six month waiting periods for every shipment. “Any executions with Propofol would lead to an extreme shortage,” he concludes.

It seems absurd, of course, that Missouri was in such a hurry to find a way to kill someone—even someone as awful as Franklin, a serial killer. Still, it’s hard to imagine a more ludicrous and horrifying scenario than that of a state desperately scurrying about for an acceptable way to kill people.

But that’s the insane state that the state of Missouri—along with 32 other death-penalty states—is in. Missouri’s frantic quest for a better death-inducing drug brought it to pentobaritol—an anesthetic widely used in euthanizing animals, but previously untried in human death penalty protocols.

And it was precisely Missouri’s hurry that impelled U.S. District Judge Nanette Laughrey to issue the last-minute stay of execution for Franklin. In her ruling, she noted that:

Missouri issued three different protocols in the three months preceding Franklin’s execution date and as recently as five days before.

Franklin has been afforded no time to research the risk of pain associated with the department’s new protocol, the quality of the pentobarbital provided, and the record of the source of the pentobarbital

.

Compounding the problem

Those last two phrases—“the quality of the pentobarbital provided, and the record of the source of the pentobarbital”—deserve a closer look.

The first phrase, drawing attention to the quality of the drug, refers to Missouri’s decision to get its pentobarbital from a compounding pharmacy. Pharmaceutical compounding refers to the creation of a particular pharmaceutical product to fit the unique need of a patient. It’s often used to alter the form of a medication—creating a powder or liquid for a patient who can’t swallow a pill, or creating a special dosage of a medication, such as a half dose, not routinely offered by drug manufacturers.

The problem is that compounding can be controversial, because drugs mixed in compounding pharmacies are not approved by the U.S. Food and Drug Administration. Critics contend use of the compounded drugs could result in needless suffering and botched executions, but states including Missouri have pressed ahead.

Then, there’s the issue of—as the judge noted—“the record of the source of the pentobarbital.” Missouri decided to hide the name of the compounding pharmacy mixing its lethal-injection drug. The state accomplished this task by making the compounding pharmacy a member of its official “execution team,” which could allow the pharmacy’s identity to be kept secret.

Desperate measures

Similar issues outside Missouri demonstrate the lengths to which states seem willing to go to find ways to execute people on death row. For example, a federal civil complaint in Texas claims that officials from state’s Department of Criminal Justice may have falsified prescriptions, lied to pharmacies and perhaps even broken the law.

“The states are scrambling to find the drugs,” says Richard Dieter, executive director of the Washington-based Death Penalty Information Center. “They want to carry out these executions that they have scheduled, but they don’t have the drugs and they’re changing and trying new procedures never used before in the history of executions.”

States have been forced to try new drug combinations or go to loosely regulated compounding pharmacies that manufacturer variations of the drugs banned by the larger companies. The suit against Texas alleges the state corrections department falsified a prescription for pentobarbital, including the patient name as “James Jones,” the warden of the Huntsville Unit “where executions take place,” according to court documents. Additionally, the drugs were to be sent to “Huntsville Unit Hospital,” which, the documents say, “has not existed since 1983.”

In October, Ohio was set to execute Ron Phillips using a two-drug cocktail never before used in an execution. Ohio’s Department of Rehabilitation and Correction said it “was unable to obtain a sufficient quantity of pentobarbital.” Pentobarbital was the “preferred” drug [what a concept!], but it became unavailable because of its European manufacturer’s objections to its use as an execution drug. So, Ohio created a new, untested protocol, in which it would inject, intravenously, the sedative midazolam and pain-killer hydromorphone in a lethal dosage. Shortly before it was scheduled, Phillips’ execution was delayed by a lawsuit unrelated to the protocol.

Death to the death penalty

Most American states, plus the U.S. Supreme Court—and all of the European Union—have already decided that previous forms of execution are not acceptable. So, we’re not going back to the gas chamber [although, earlier this year, Missouri's Attorney General threatened to do so if he couldn't get the lethal drugs he desperately needed for scheduled executions.] Or the electric chair. Or hanging. Or firing squads. Or the guillotine. Or stoning. Maybe states will look at what they are doing and realize that their desperate, absurd search for an ever-dwindling supply of killer drugs is a form of insanity. We can only hope that state-sponsored executions by lethal injection will eventually join the Death Penalty Hall of Shame, too.  And–if humanity and sanity prevail–so could the death penalty itself.

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