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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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Comment Preferences

  •  Tip Jar (7+ / 0-)

    Life's a dance you learn as you go; sometimes you lead, sometimes you follow.

    by gloriasb on Thu Dec 05, 2013 at 11:22:58 AM PST

  •  The issue is front and center in La. (4+ / 0-)

    The state refuses to certify that its stock of pentobarbital is current and lawyers are filing appeals based on that refusal.

    My friend Della Hasselle has been covering the issue extensively for the Lens.

    I live under the bridge to the 21st Century.

    by Crashing Vor on Thu Dec 05, 2013 at 11:36:01 AM PST

  •  unlikely ... they just plain want to kill people (2+ / 0-)

    They'll find a way; their twisted morality leaves them no other option, because in their minds, the only alternative is "giving the worst of the worst free room and board for life at taxpayer expense".

    Domestic politics is the continuation of civil war by other means.

    by Visceral on Thu Dec 05, 2013 at 11:36:13 AM PST

  •  Uh, no. (2+ / 0-)

    That's not even a likely outcome.  Not like we need European drug manufacturers for most drugs, or those particular drugs out of the thousands of substances that can kill.

    Even if lethal injection was somehow limited, all the other methods of execution are still legal.  Heck, the electric chair was used for an execution this year.

  •  Actually, executions performed (2+ / 0-)

    by way of firing squad, hanging, gas and the electric chair have never been held unconstitutional by the Supreme Court.  They have been outlawed at the state level, but I'm not aware of any SCOTUS case dealing with any of these methods of execution.  

  •  You had me at (3+ / 0-)

    "dearth of death" -- but you're right, of course. This situation is bizarre, and hopefully it will help to prod the remaining death-penalty states to abandon their role as executioner. Progress frequently travels a convoluted path!

  •  There's always George Zimmerman. (1+ / 0-)
    Recommended by:
    Andrew F Cockburn

    Probably a good fit for his skills...

  •  I love that this is happening (1+ / 0-)
    Recommended by:
    Andrew F Cockburn

    But we're going to need to find a way to "out" the compound pharmacies. Got to keep the pressure up!

    Rick Perry - the greatest scientist since Galileo!

    by Bobs Telecaster on Thu Dec 05, 2013 at 01:24:08 PM PST

  •  I wonder why the pro-death penalty backers (1+ / 0-)
    Recommended by:

    don't want to do it in the most painful and barbaric way possible. After all, the justification is that it is supposed to be a deterrent.

    Bring back hanging, drawing, and quartering and broadcast it live on network TV. Get some closeups with blood spraying all over the lens. Make it clear that what is happening is a human being is being killed by the state. It worked for the Elizabethans.

    The antiseptic, invisible way that it is done now lets people ignore it. A jail cell is vacant, the Social Security database is updated, and nobody gets their hands dirty.

    The next step will be robot prisons. All someone will have to do is hit the delete key and prisoner 323457 no longer exists. No muss, no fuss. Just like using drones to fight our wars.

  •  The Death Penalty: How bad is the EU? (0+ / 0-)

    The Death Penalty: How bad is the EU?
    Dudley Sharp

    The EU could hardly be more hypocritical on this issue, selling tons of materials to produce sarin gas for Syria to murder innocents, just to make a profit (1).

    The death penalty represents justice and it spare saves more innocent lives (2).

    The EU supports injustice, will do all they can to save all murderers, no matter the cost, inclusive sacrificing more innocent lives (3).

    The EU opposes the death penalty, allegedly because they find it a human rights violation, even though they have never shown it to be one (4).

    The EU contradicts their own population, a majority of which support the death penalty (5).

    The EU has spent at least $4.8 million (US) of EU citizens' tax monies, fighting to save murderers in the US (6), against the wishes of their own citizens, as well as those in the US, instead of giving that money to innocent victims of crime. How grotesque.

    The US and the EU have never had a problem in extraditing criminals to the US, that face the death penalty, as the US simply waives seeking death in those cases, putting more innocents at risk, at the behest of the EU.

    1)  Gross Hypocrisy & Moral  Choices:
    Germany/European Union & The US Death Penalty

    2) The Innocent Frauds: Standard Anti Death Penalty Strategy

    OF COURSE THE DEATH PENALTY DETERS: A review of the debate
    99.7% of murderers tell us "Give me life, not execution"

    3) The Death Penalty: Do Innocents Matter?

    4) The Death Penalty: Not a Human Rights Violation  

    5) 86% Death Penalty Support: Highest Ever - April 2013
        World Support Remains High
        95% of Murder Victim's Family Members Support Death Penalty

    6)  European Union financing efforts to end death penalty in U.S., By Lachlan Markay — The Washington Free Beacon, carried by the Washington Times, 10/31/2013,

  •  lethal injection concerns mainly hocum (0+ / 0-)

    All the drugs, currently, being used or considered for lethal injection have well known pharmacological effects, which are easy to look up, and all of which produce a painless execution, if properly administered.

    Intravenous injections are successfully given millions of times per day, throughout the world.

    Finding and/or training a competent persons to give such injections is a routine, every day affair.

    None of these drugs are difficult to compound, particularly for the compounding pharmacies, which are, constantly, called upon to compound specific drugs for individual patients, at the request of doctors and hospitals, both of which are confident in their use of compounding pharmacists.

    Should judges review and confirm training, drug acquisition and conditions. Yes.  That should take no more that a couple of days.

    Some 5000 patients die, every year, in the US, during the anesthetic portion of surgeries, an unintended death of an innocent person, whose surgery was to be a healing process.

    And the outrage over that? Apparently, invisible.

    On average, we execute 33 murderers per year, who are justly executed for the horrific acts they willfully committed against the innocent and for which they brought about, upon themselves, the sanctions which they have earned.

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