The last breaths of America's machinery of death

Few states still have capital punishment, and even those that do are finding it difficult to find the drugs needed for lethal injections

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The Independent Online

When the history of the long, slow decline of capital punishment in America is written, a footnote must be reserved for the Apothecary Shoppe of Tulsa, Oklahoma. Do not be deceived by the name. Quaint and cosy it may sound, but until this month the company was the unofficial supplier of the drug used in executions by neighbouring Missouri.

The arrangement resembled something out of The French Connection rather than preparation for the ultimate punishment that the state can mete out to one of its citizens. An official from Missouri's Department of Corrections (by such euphemisms are prison services known in the US) would secretly travel to Tulsa. There he would pay $11,000 in cash for a specially commissioned version of pentobarbital, a powerful barbiturate. The official would then carry the stuff by hand back across the state line to Missouri, to be injected into the condemned man.

Three times this happened last year – and the same thing was to have happened for this Wednesday's scheduled execution of Michael Taylor, convicted of raping and murdering a schoolgirl in 1989 while under the influence of crack cocaine. But on 10 February, the Missouri legislature held a hearing on the state's execution protocol, and the department's shifty little drug-running operation with Tulsa became public.

Taylor's lawyers, who since 2006 has been fighting the death sentence on the grounds that lethal injection violated the US constitution's ban on "cruel and unusual punishment", brought a new action against the Apothecary Shoppe, claiming it was not certified to do business in Missouri. The company thereupon announced it would not supply the drug for the execution after all. What happens next is unclear. The lawyers are lodging further appeals, but on Friday the Missouri authorities indicated they had found a replacement supplier of pentobarbital, and insisted there was no reason the execution should not go ahead.

Sleazy, even ghoulish, the episode may be. It is, however, another reason to believe that, slowly but inevitably, the death penalty in America is on the way out. Since executions reached a peak in the late 1990s, one objection or obstacle after another has surfaced.

DNA testing proved that dozens of innocent men had been sent to death row, making it more than likely that an innocent man had been put to death. The sheer cost of the exercise became increasingly hard to justify. California, for instance, is reckoned to have spent $4bn on capital cases over the past 35 years – all for just 13 executions, the last of them carried out in 2006. And now the states that still do kill people are struggling even to lay their hands on the basic tools for the job.

Since the US Supreme Court reinstated capital punishment in 1976, lethal injection has become the overwhelmingly preferred means of execution. Of the 32 states that have the death penalty on the books, all employ injection as the primary method, with the gas chamber and electric chair an option for inmates in only a dozen of them. And for a while the system ran smoothly, with most states employing a three-drug cocktail: first sodium thiopental to anaesthetise the prisoner, then pancuronium bromide to paralyse him, and finally potassium chloride to stop the heart.

There was, however, just one catch. Given the reluctance of domestic manufacturers to be drawn into lawsuits, the drugs were mostly imported, and mainly from Europe. But as part of its campaign against the death penalty worldwide, the EU in 2011 banned the export of eight drugs that could be used in executions. For America's death chambers, the supply of sodium thiopental in particular virtually dried up. A replacement for the three-drug formula had to be found.

Texas, which alone has performed 510 of the 1,367 executions carried out in the US since 1976, switched two years ago to pentobarbital. Missouri initially decided to go with propofol, the anaesthetising drug on which Michael Jackson overdosed. That too, however, came from Europe, which threatened to ban export of a product used in almost every hospital in the US. Eventually Missouri too settled on pentobarbital and, as noted above, appears to have found a secret supplier to replace the Apothecary Shoppe.

Other death penalty states have had even more trouble. On 9 January, Oklahoma put Michael Lee Wilson to death with a three-drug mixture, starting with pentobarbital. "I feel my whole body burning," were his last words. A week later in Ohio, Dennis McGuire, who had killed a pregnant woman in 1989, took 26 minutes to die, shuddering and gasping, after being injected with a previously untested mixture of two drugs, the sedative midazolam and hydromorphone, supposedly a painkiller.

As a result, Louisiana, which was to have used the same cocktail on one of its own prisoners this month, postponed that execution until May to allow a new medical assessment. In Virginia, meanwhile, once outdone only by Texas in its use of capital punishment, only two executions have been carried out in the past three years (and one of those by electric chair, at the choice of the inmate). One reason for the slowdown has been problems in procuring drugs – and further controversy seems certain now that the state had just approved midazolam as a replacement for sodium thiopental in its execution arsenal.

And all the while, national enthusiasm for the death penalty continues to wane. Not only were there just 39 executions in the US last year compared with 98 in 1999, but death sentences and death row populations are also sharply down. Public support is at its lowest ebb in four decades – only 55 per cent according to a 2013 Pew study. Of the 32 states that have the death penalty, three have suspended the practice, temporarily at least.

"I shall no longer tinker with the machinery of death," the late Supreme Court justice Harry Blackmun famously declared in 1994, having concluded the system was unworkable. The machinery grinds on, ever more clogged. For how much longer?