march 19, 2014

In the decades he spent filing stories from Jacksonville after visits to Florida’s execution chamber, former AP reporter Ron Word saw a lot that still lingers in the back of his mind. There are the images from the old days of the electric chair: The executioner’s black hood, only visible through a slit in the wall; or the electrician’s thick rubber gloves, worn in the event of mechanical problems. And there are the dramatic episodes: the execution of Ted Bundy; electrocutions in which “there were flames coming off the inmates’ heads”; the botched, bloody death of Allen Lee “Tiny” Davis in 1999, in a special electric chair built for his 344-pound body, then never used again.

There were the times the Florida Department of Corrections (DOC) tried to alter the narrative. Once, Word remembers, in the early days of lethal injection, he got a call from prison officials telling him, “You’re gonna’ have to change the times in your story. They don’t agree with our times.” Word refused. Another time, after the agonizing 34-minute death of Angel Diaz — executioners pushed the IV needles into his flesh instead of his veins — Word says the DOC “pretty much lied to us that night.” Prison officials claimed Diaz had some sort of liver problem, “but as it turned out there was nothing wrong with his liver. It was because of the procedure they used.”

That happened around Christmas of 2006. Afterward, Florida temporarily halted executions and revised its protocol. And that’s when they brought in the moon suits.

“At all Florida lethal injections, a man in a purple moon suit leans over the dying inmate to listen for a heartbeat and feel for a pulse,” Word reported in the summer of 2007. “After a few seconds, he nods, and the witnesses are informed that the death sentence has been duly carried out. The man is a doctor, and the gear shields his identity — not just from the prisoner’s family and friends, but from the American Medical Association, whose code of ethics bars members from participating in executions.”

The moon suits still stick out in Word’s memories. “It kind of surprised me when they first showed up. It was kind of bizarre.” Regardless, he says, “after two or three executions they quit using them.” The moon suits appeared to attract rather than deflect attention. Other states had developed less theatrical ways of hiding the identities of doctors who helped them kill prisoners.

Word was laid off in 2009, after witnessing some 60 executions. Speaking over the phone from Jacksonville, he says that most of them blend together in his mind. Whether they used the electric chair or lethal injection, state officials aimed to make the procedure bear as little resemblance as possible to what was actually happening — the taking of a human life. “The result was the same,” he says, and both involved practiced rituals and procedures that “made it as sanitized as possible.” But Word adds, “I think it used to be more open than it is now. More transparent.” From what he could tell, “lethal injection was kind of a learning exercise.”

A learning curve for killing

“Learning exercise” is a pretty good way to describe Florida’s approach to lethal injection these days. On Thursday, the state plans to execute 55-year-old Robert Henry for a gruesome double murder committed in 1987. To kill him, prison officials will use a new protocol implemented last fall, which introduced the sedative midazolam into the state’s lethal drug mix. Commonly used for a variety of medical purposes, including patients undergoing surgery, midazolam had never before been used in executions until Florida adopted it. It’s also unclear how the state, which is now killing prisoners at a brisk pace, came up with the idea to use the drug in the first place.

Nevertheless, in a letter to Governor Rick Scott last September, Florida Department of Corrections Secretary Michael Crews provided lofty assurances that the new procedure “is compatible with evolving standards of decency that mark the progress of a maturing society, the concepts of the dignity of man, and advances in science, research, pharmacology, and technology.”

“The foremost objective of the lethal injection process,” Crews wrote, “is a humane and dignified death.”

But the first Florida prisoner executed with the new method, William Happ, died last October “in what seemed like a labored process,” according to a reporter for the Sun Sentinel. “At times his eyes fluttered, he swallowed hard, his head twitched, his chest heaved.” An AP report said “it appeared Happ remained conscious longer and made more body movements after losing consciousness than other people executed . . . under the old formula.”

But a circuit court judge later concluded there was “no credible evidence” that Happ had suffered. So Florida stuck with the new process. Barring a last-minute stay of execution, tomorrow Robert Henry will be the fifth prisoner killed in this manner.

In the 2008 case Baze v. Rees, the U.S. Supreme Court upheld the three-drug lethal injection protocol that had been used for years by most death penalty states. Ironically, a couple years after, many states began moving away from it. Shortages of the drugs used in that protocol have since forced states find new ways to kill prisoners. Those shortages are in part due to a campaign by the U.K.-based human rights group Reprieve. The group has enormous success convincing overseas companies to bar their drugs from export to the U.S. for use in executions. “Pharmaceutical companies make medicine to cure people,” Reprieve founder Clive Stafford Smith recently wrote, “so they object to their drugs being used to kill.”

What has followed is chaos, controversy and improvisation, all played out on the bodies of prisoners. States are now choosing new drugs based more on their availability than on medical science. State prison officials have been inventing protocols as they go along and conducting what amount to experimental executions.

The trend began in 2010, when diminishing supplies of sodium thiopental—the first drug in the three-drug “cocktail” upheld by the Court in Rees—prompted death penalty states to get creative in their search for execution drugs. In 2011, I wrote an article for The Nation describing the consequences in Georgia, where two inmates had recently died with their eyes open—a grim indication that the sodium thiopental had not worked as intended, and that the men had likely suffered agonizing deaths. There was also evidence that the drugs had been used past their expiration dates. Lawyers for death row inmates traced source of the drugs overseas to a sketchy pharmaceutical wholesaler named Dream Pharma, which advertised that it could discreetly sell “discontinued” and “hard to find” drugs.

Death penalty states have since given up on getting sodium thiopental — its U.S. manufacturer no longer makes the drug, and European makers are now banned from exporting it for executions — but the scattered, secretive searches have continued. Today, unregulated compounding pharmacies are increasingly the go-to source (despite few guarantees about the effectiveness of the drugs they sell) and pentobarbital — a barbituate like sodium thiopental — has become the go-to drug (despite no guarantees about how it functions in an execution). These changes have come quickly, quietly, and secretively. After Ohio became the first to use a single lethal dose of pentobarbital to kill a prisoner in March 2011, Texas swiftly announced that it would do the same. Lawyers for Cleve Foster, the next in line to die, protested the complete lack of transparency with which the drug had been adopted (which also happened to violate state law). As Foster’s attorney, Maurie Levin, told me the day before his scheduled execution in April 2011, pentobarbital “has not been vetted. It certainly hasn’t been vetted in Texas.” (After several stays from the Supreme Court, Foster was executed in September 2012.) Nevertheless, according to the Death Penalty Information Center (DPIC), fourteen states now plan to use pentobarbital to kill prisoners—and five more plan to use it going forward.

No state has been more eager to experiment than Ohio, which boasts a number of lethal injection “firsts,” according to the DPIC. On January 16, the state killed Dennis McGuire using the unprecedented combination of midazolam and the pain medication hydromorphone. The execution was so dramatically botched that it made international headlines. Horrified witnesses watched as the 253-lb McGuire “repeated cycles of snorting, gurgling and arching his back” and appeared to “writhe in pain,” according to a subsequent lawsuit filed by his family. Making matters worse, state officials had been warned in advance that the use of the untested drugs put McGuire at risk of a horrific, suffocating death. They went ahead with the execution anyway.

As Florida’s execution of Robert Henry approaches, his attorneys warn that he, too, is likely to suffer. At an evidentiary hearing on March 10, Emory University anesthesiologist Dr. Joel Zivot — a vocal critic of this form of lethal injection—said that “science is being misused and misunderstood” in his case. Zivot testified that Henry’s combined health problems—including hypertension, high cholesterol, and coronary artery disease—provide a “high degree of certainty” he will suffer a heart attack on the gurney. The Florida Supreme Court rejected that argument. In response, Henry’s supporters denounced the ruling, pointing out that the court had relied on the testimony of “the Government’s go-to doctor for death,” Dr. Mark Dershwitz. Dershwitz has lent his medical expertise to reassure states of the soundness of their killing protocols in dozens of cases, including the experiments that led to Ohio’s disastrous execution of Dennis McGuire.

State secrets

Earlier this year, the Florida Supreme Court ordered a hearing in which Florida DOC officials explained what precautions they take to ensure that inmates experience “a humane and dignified death.” But instead of discussing why and how the state chose what drugs it uses, the hearing was a farcical discussion of minutia. As A.P. journalist Tamara Lush reported, DOC Assistant Secretary Timothy Cannon testified that DOC officials had come up with a new way of performing a “consciousness check” on a prisoner. In his capacity as the execution “team leader,” Cannon testified that whereas he previously used what he called a “shake and shout”—grabbing an inmate’s shoulders and yelling his name—he now relies on the more subtle “trapezoid pinch,” or squeezing the flesh between a prisoner’s neck and shoulder.

Cannon also explained that as part of their training, members of the execution team would take turns playing the role of the condemned. That practice, he said, generated some helpful feedback. “We’ve changed several aspects of just the comfort level for the inmate while lying on the gurney,” he testified. “Maybe we put sponges under the hand or padding under the hands to make it more comfortable, changed the pillow, the angle of things, just to try to make it a little more comfortable, more humane and more dignified as we move along.”

So while Florida DOC officials proved they have pondered the ways in which gurneys can be turned into a cozier death beds, they provided no answers regarding the efficacy, origin or humaneness of the methods they are using to kill people. In fact, a spokesperson told the National Journal last fall that the official DOC policy is to refuse “to go into any detail about how or why the protocol was designed. Those decisions are exempt from public record because they could impact the safety and security of inmates and officers who are involved in that process.”

But Florida isn’t alone in its secrecy. The Atlantic’s Andrew Cohen has written at length about how “state officials all over the nation have sought to protect this information from public disclosure.” In Missouri, the only state that still carries out executions at midnight, state officials are embroiled in an ugly, ongoing battle to deny inmates any information about the drugs that will be used to kill them. In Georgia, where the federal Drug Enforcement Administration ultimately raided the Department of Correction in 2011 to seize the supply of sodium thiopental the state got from Dream Pharma, lawmakers have responded by pushing legislation that would make the origins and procurement of lethal injection drugs a “confidential state secret.” Other states whose supplies were also raided by the DEA have responded similarly. In Tennessee, which intends to execute ten prisoners beginning later this year, officials waited for such a secrecy law to pass the state legislature before announcing the parade of executions. The DPIC estimates that seven states have passed similar laws.

If today’s executions truly represented the heights of moral advancement suggested by Secretary Crews in his letter to Rick Scott last fall, it may seem odd that state governments would go to such lengths to keep the public from knowing anything about them. Of course, part of that is likely due to the success of groups like Reprieve. If states don’t reveal what drugs they’re using, Reprieve can’t pressure the drugs’ makers to refuse to sell the drugs for executions.

But today’s fight over transparency and lack of concern over botched executions are good reminders of the fundamental lie at the heart of lethal injection: It is a punishment that, by its very design, has always been rooted in secrecy rather than medical science. Never mind the rhetoric about “humane and dignified death.” However brutish the electric chair or gas chamber might appear by comparison, the only thing that truly sets lethal injection apart is that it was devised to mask what it was doing to its victims. As states have been forced to abandon that original design, lethal injection has been exposed for what it actually is: an experimental, unscientific form of premeditated killing.

“To hell with them. Let’s do this.”

Perhaps the best illustration of just how little consideration went into the design of lethal injection is the story behind the development of the protocol later used by most death penalty states and eventually approved by the Supreme Court in Rees. In a 2007 article for the Fordham Law Review, law professor Deborah Denno explained how Oklahoma first came up with the idea in 1977.

Like much criminal justice policy, it was based more on hunches and gut reactions than science and empirical data. “At each step in the political process,” Denno wrote, “concerns about cost, speed, aesthetics, and legislative marketability trumped any medical interest that the procedure would ensure a humane execution.” Although government-appointed commissions in both the U.S. and U.K. had by then studied and rejected lethal injection — with the latter finding “a lack of ‘reasonable certainty’ that lethal injections could be performed ‘quickly, painlessly and decently’”— Oklahoma legislators resurrected the idea after the U.S. Supreme Court reinstated the death penalty with Gregg v. Georgia in 1976. “Seemingly oblivious to prior concerns, American lawmakers emphasized that lethal injection appeared more humane and visually palatable relative to other methods,” Denno wrote.

That the method be “visually palatable” was of particular importance. In Oklahoma, two politicians led the push for lethal injection: State Rep. Bill Wiseman and state Sen. Bill Dawson. Wiseman was disturbed by the ugliness of electrocutions, later telling the Tulsa World they were “kind of a combination of Barnum & Bailey and reform.” Describing himself as a reluctant supporter of executions, he wrote a bill in 1977 to replace the electric chair with lethal injection, which he was convinced would be more humane. According to the World, he then ‘placed on every legislator’s desk an envelope containing two pictures of a man who had been electrocuted. ‘It looked like seared meat,’ he said. ‘Some people just didn’t like it.’”

As Denno explains, Wiseman was eventually told by his own physician, who was also the head of the Oklahoma Medical Association, that the organization wanted no involvement in his lethal injection project. Anxious to give the process even the thinnest medical veneer, Wiseman and Dawson settled on the help of the state’s chief medical examiner, Jay Chapman, who candidly admitted that he was more of “an expert in dead bodies” than “an expert in getting them that way.” Still, he was eager to help. When the lawmakers expressed concerns over what it could mean for his reputation within the medical community, Chapman was cavalier. “To hell with them,” he said. “Let’s do this.”

Despite his lacking credentials, Chapman devised the famed “three-drug cocktail” that would become the established protocol for the rest of the country for years. The first drug (generally sodium thiopental) anesthetized the prisoner. The second (pancuronium bromide) caused paralysis, including of the muscles used for respiration. And the third (potassium chloride) stopped the heart.

In combination, the drugs created the impression of a peaceful and humane process — the pancuronium bromide masked any ugly outward signs of what may have been happening in the prisoners’ bodies. But the states would later discover that if the anesthetic failed to work properly, the inmates would suffocate, and fall into cardiac arrest. They would experience an excruciating death, but the paralytic would prevent inmates from crying out or exhibiting obvious signs of distress. The risk of such suffering was particularly senseless given the lack of evidence that the paralyzing drug played anything other than a cosmetic role in the process. As a Tennessee judge wrote in 2003, pancuronium bromide serves “no legitimate purpose” aside from providing the “false impression of serenity to viewers, making punishment by death more palatable and acceptable to society.” Indeed, as Adam Liptak wrote in the New York Times that year, the “American Veterinary Medical Association condemns pancuronium bromide” for euthanizing animals, “because, an association report in 2000 said, ‘the animal may perceive pain and distress after it is immobilized.’”

In its ruling in Baze v. Rees years later, the Supreme Court dismissed the AVMA’s position, along with the risks inherent in the use of pancuronium bromide, concluding that the drug played a legitimate role in providing a “quick, certain death.” But by then, even Chapman himself — who has expressed disgust at the way his lethal injection protocol has been bungled by “complete idiots” — had acknowledged that the paralyzing agent may have been a mistake. Asked by CNN in 2007 why he included it in the first place, he said, “It’s a good question. If I were doing it now, I would probably eliminate it.”

Given that many states are now doing just that as they move onto other lethal injection protocols, the use of pancuronium bromide has become a mostly moot point. Still, its removal from the process could have one important, if unintended effect: It could make killing look like killing. As Mike Brickner of the ACLU of Ohio told me after Dennis McGuire’s harrowing death, “Now that we’re using drug combinations where there’s no paralytic, maybe we’re seeing inmates die in ways that were always ‘botched’ — except that their body could not physically show it.”

Such bad optics were precisely what Chapman always wished to avoid. (He has called it “ludicrous,” for instance, to allow witnesses to watch as execution teams, “feeling nervous and fiddling around,” look for an inmate’s vein.) As the ongoing controversy over lethal injection continues, Chapman’s legacy as patriarch of the killing cocktail exposes our quest for “humane executions” for what it really is. It’s less about finding a dignified way for prisoners to die, and more about finding a way to kill them that preserves the humanity of the prison staff, the medical professionals, and a public largely indifferent to the Constitutional requirement that prisoners be spared from “torture or lingering death.”

Chapman himself once reflected that indifference in an exasperated email to Denno, “Perhaps hemlock is the answer for all the bleeding hearts who forget about the victims—and their suffering—Socrates style . . . the things that I have seen that have been done to victims [are] beyond belief . . . And we should worry that these horses’ patoots should have a bit of pain, awareness of anything — give me a break.”

One could perhaps understand Chapman’s perspective, given the time he spent up close with the corpses of murder victims. But the law does demand a humane death. The initial decision to turn to a man who doesn’t believe in that principle to devise a method of execution was exceptionally cynical. That Chapman’s lethal injection experiment was then replicated across the country for decades, despite it’s fundamental flaws, is a shameful history.

Worse, we seem to have learned very little from it. As the anesthesiologist Joel Zivot wrote last December, these states are “usurping the tools and arts of the medical trade and propagating a fiction.” The state of Florida plans to kill Robert Henry tomorrow by using a drug designed, tested, and sold for healing. We don’t know its effects when it’s used for killing. To borrow from Zivot, when it comes to the death penalty, “What appears as humane is theater alone.”

(washingtonpost)