Secret, Untested Drug Cocktails Are Leading To Botched Executions

As drug companies refuse to let their products be used for the death penalty, states are using untested drug combinations that have resulted in deaths like that of Dennis McGuire in Ohio, where the state used an untested two-drug method despite warnings it might cause immense suffering. We speak with the reporter who witnessed the execution and with a lawyer for a man executed in Missouri with an entirely different lethal drug cocktail, made by a pharmacy the state refuses to name. Meanwhile, on Thursday Virginia lawmakers failed to pass a law that would let death row prisoners die in the electric chair now that the state has run out of the chemicals used to make up its three-drug execution cocktail, and is unable to locate more. The delayed vote could impose a temporary moratorium in Virginia, which executes more people than any other state besides Texas. The execution drugs’ scarcity stems from the refusal of manufacturers in Europe and the United States to let them be used to put people to death. We speak with Alan Johnson, reporter with The Columbus Dispatch in Ohio, who witnessed McGuire’s execution and says he observed him gasping for air, and that he appeared to be choking. We are also joined by Cheryl Pilate, one of the lead attorneys for Herbert Smulls, who was executed Jan. 29 with a lethal dose of pentobarbital that was made by a compounding pharmacy the state refuses to name. Also joining us is Megan McCracken, attorney with the University of California, Berkeley, School of Law’s Death Penalty Clinic, where she is an expert on lethal injection methods.

TRANSCRIPT

This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: We begin today’s show with a look at the chaos surrounding executions in the United States now that many of the drugs used for lethal injections are no longer available. Some states have moved forward by using untested combinations that have resulted in what critics say are cruel and unusual deaths. The final words of Oklahoma prisoner Michael Lee Wilson just 20 seconds into his execution in January were, quote, “I feel my whole body burning.” Weeks later, Ohio executed Dennis McGuire using an untested two-drug method despite warnings it might cause immense suffering. His son, also named Dennis, witnessed the execution.

DENNIS McGUIRE: Shortly after the warden buttoned his jacket to signal start of the execution, my dad began gasping and struggling to breathe. I watched his stomach heave. I watched him try to sit up against the straps on the gurney. I watched him repeatedly clench his fists. It appeared to me he was fighting for his life, but suffocating. The agony and terror of watching my dad suffocate to death lasted more than 19 minutes. It was the most awful moment in my life to witness my dad’s execution. I can’t think of any other way to describe it than torture.

JUAN GONZÁLEZ: Not long after McGuire was executed in Ohio, the state of Missouri put to death Herbert Smulls with yet another chemical cocktail that used three drugs instead of two.

Meanwhile, on Thursday Virginia lawmakers failed to pass a law that would let death row prisoners die in the electric chair now that the state has run out of the chemicals used to make up its three-drug execution cocktail and is unable to locate more. The delayed vote could impose a temporary moratorium in Virginia, which executes more people than any other state besides Texas. The execution drugs’ scarcity stems from the refusal of manufacturers in Europe and the United States to let them be used to put people to death. Reports of the first company to refuse such use came out in 2011.

CHRISTIE DUFFY: Hospira announced today that it is discontinuing the production of sodium thiopental, a drug used for death penalty lethal injections. Hospira is the sole U.S. manufacturer of the death penalty drug, which it makes at its plant in Italy. It is discontinuing production because it could not guarantee Italian authorities that the drug wouldn’t be used in executions.

AMY GOODMAN: As the shortage of execution drugs intensifies, at least seven states could join Virginia in returning to the electric chair: Alabama, Arkansas, Florida, Kentucky, Oklahoma, South Carolina and Tennessee. Three states still allow hanging; that’s Delaware, New Hampshire and Washington. And the gas chamber is legal in Arizona, Missouri and Wyoming.

Well, for more, we’re joined by three guests.

Alan Johnson is with us, a reporter with The Columbus Dispatch in Ohio, and has covered most of the executions in the state since it resumed them in 1999. Most recently, he witnessed Dennis McGuire’s execution. He’s joining us via Democracy Now! video stream.

In Kansas City, Missouri, Cheryl Pilate is one of the lead attorneys for Herbert Smulls, who was executed January 29th with a lethal dose of pentobarbital. It was the state’s third execution since November and the third since switching to the new drug, which is made by a compounding pharmacy the state refuses to name.

And in Philadelphia, Megan McCracken is with us, an attorney with the UC Berkeley School of Law’s Death Penalty Clinic, where she’s an expert on lethal injection methods.

We welcome you all to Democracy Now! I want to begin with Alan Johnson in Columbus with The Columbus Dispatch. You witnessed the execution of McGuire. Can you describe what it was—can you describe the execution, what you saw?

ALAN JOHNSON: Sure. I heard the son describe it, and it was very similar. He was very accurate, and of course from a different point of view. But I have seen about 20 executions in Ohio, and this one started out very similar to the others. The chemicals started flowing, and Mr. McGuire turned his head away from his family and appeared to close his eyes and become unconscious. And that’s how they normally go, but this one differed in that he started gasping, as his son described. His stomach was going—compressing and then going out. He clenched his fists. Mainly, it was the deep gasping. I think the attorneys called it “air hunger,” and it was almost a choking sound, a snorting sound. And keep in mind that we’re hearing this through glass, so we’re not in the same room, but we’re in the next room through glass, and they were very audible, loud gasps that he was expressing. And it appeared to be he was trying to breathe, and he was struggling in some capacity. Don’t believe he was conscious, have no idea if he was feeling pain, but it was definitely a struggle unlike anything I’d seen in all the executions I’ve witnessed.

JUAN GONZÁLEZ: And, Alan Johnson, what was the reaction of the—yourself, the witnesses, even the prison officials that were there?

ALAN JOHNSON: Well, the media, we’re at the back of the room, a very small room, and we were just watching and taking notes, of course. The victim family—Joy Stewart was the victim—they were completely silent. They made no sound. They had no reaction. Now, McGuire’s family—his son, daughter and daughter-in-law—were very visibly shaken. They were crying. They were sobbing. They were holding each other. It was a very emotional side of the room where they were. And the prison officials didn’t really seem to have any visible reaction. They were observing as they normally do, and didn’t react one way or the other.

The thing about this, it went on for at least 10 minutes, this particular part of it where he’s struggling. It might have been a little bit more, but it was at least 10, possibly 12 minutes. And that may not seem like a terribly long time in other contexts, but in this, it was a very long time.

AMY GOODMAN: Alan Johnson, why did they use this new drug combination, this new drug cocktail?

ALAN JOHNSON: I think your introduction explained that very well. Ohio has had three other combinations or, in one case, a single drug. In each case, the drug was no longer available, and because of that, they had to switch. So—and that sounds a little bit easier than it actually is, because it’s a very detailed protocol, and, more importantly, it has to be approved by the courts. In Ohio, the U.S. District Court in Columbus has been very—had a deep scrutiny about this process. It has been very critical of it. So, whatever they do has to pass legal muster as well as the process of the medical examination.

JUAN GONZÁLEZ: We’re also joined by Cheryl Pilate, who’s an attorney for Herbert Smulls, who was executed January 29th in Missouri, as I understand. Cheryl Pilate, could you talk about the—what you understood to be the drug combination that was used there, and also about the issue of the state of Missouri, like many states, maintaining the actual composition of the drug secret?

CHERYL PILATE: I think what we’re seeing right now is a real determination to move ahead regardless of knowing whether the drug or combination of drugs are safe or have been proven effective. What I foresee coming is actually a lot of executions this year.

In Missouri, what occurred in my client’s case, as in the two prior executions in Missouri, was the use of compounded pentobarbital. And the significance of that is actually manyfold. With a compounded drug, the drug can actually vary from batch to batch. It is compounded individually at a compounding pharmacy, and the entire process has been surrounded by secrecy, with the state not revealing who the compounding pharmacy is or where the drugs come from or what lab has tested them. And an independent investigation has raised a lot of questions for those of us who represent the prisoners on death row.

But basically what we see proceeding here, and which is very disturbing, is experimentation on human subjects. I mean, I think that’s essentially what it is. These are not time-tested and vetted methods. And I just think in several states across the country there has been a real determination to move ahead with these essentially experimental protocols.

AMY GOODMAN: You weren’t in the execution. You didn’t witness the execution of Herbert Smulls, but your investigator did. What happened in his case?

CHERYL PILATE: I have spoken to two of the witnesses who were there, and blessedly, actually, my client appeared to expire fairly quickly. One thing that we have not been able to answer is what he was trying to say. Shortly after he was injected, he was mouthing words. They could not be heard by the witnesses, so we don’t know if it was a situation like in Oklahoma where the prisoner reported that he felt his whole body burning. In Oklahoma, they used the same protocol, or at least one of the same drugs, compounded pentobarbital. And I think we’ve all heard about that execution of Mr. Wilson, who reported his whole body felt like it was burning. So, I—truly, at this point, I don’t know what my client was trying to say. We’re still doing some investigation.

But regardless, from execution to execution, there is a great deal of concern because, as I said, there’s no reliability or consistency, necessarily, from batch to batch of compounded drug, so each time you get it, you’re not entirely sure whether it’s exactly what was given before, somewhat different, whether it’s safe, whether it’s contaminated, whether it’s potent. And we get lab reports, but because the investigation we’ve done thus far of the lab that we suspect to be involved has raised a lot of questions, we frankly don’t have a lot of faith in the lab reports we’ve received.

So, a lot of questions here remain to be answered. And the problem is, we have not had time to attempt to answer them. The state is moving ahead very swiftly with executions, setting them at the rate of one per month, and it looks like sort of a mass-produced, assembly-line approach to executions, without time to ask the questions that very much need to be answered.

JUAN GONZÁLEZ: And, Cheryl Pilate, on this issue of the testing of these drugs, there’s no federal oversight in terms of the administration of these drugs by the state? I understand an appeals court in that state, in Missouri, basically allowed this to go forward recently?

CHERYL PILATE: There was a judge who did dissent from the order denying Mr. Smulls a stay. But with compounded drugs, you’re dealing largely with an industry that historically has been regulated. Whatever regulation that has existed has been at the state level. There is a new federal law that applies to drug compounding, but it doesn’t have a great reach or a lot of teeth. A lot of the mechanisms in it involve voluntary registration. So this is a largely unregulated industry. The same thing applies to the contract testing labs who test these drugs. And essentially, there’s an industry here with history of a lax or little regulation and very high profitability. And—

AMY GOODMAN: Cheryl Pilate, I wanted to ask—

CHERYL PILATE: Yes.

AMY GOODMAN: Right before Herbert Smulls was executed, your office was on the phone with him?

CHERYL PILATE: Yes, we were. My colleague Lindsay Runnels, in the office right next door to mine, was actually on the phone with Mr. Smulls when he was removed and taken into the execution chamber, essentially ripped off the phone. He was not permitted an opportunity, frankly, to say goodbye to his attorneys.

AMY GOODMAN: Were all the appeals done?

CHERYL PILATE: No, not at that point, no. We very much had a live petition and application for stay pending in the United States Supreme Court.

AMY GOODMAN: So they executed before his appeals were over?

CHERYL PILATE: That’s true, mm-hmm.

AMY GOODMAN: Megan McCracken, you’re listening to this conversation from Philadelphia, Pennsylvania, though you teach at University of California, Berkeley, School of Law’s Death Penalty Clinic. These larger issues, how the drug companies are now refusing to have their chemical compounds used, can you talk about that? We just heard Hospira saying their drugs cannot be used for execution. How often does this happen?

MEGAN McCRACKEN: Well, this is a new and, I guess, growing trend. Hospira stopped making thiopental. Later, the pharmaceutical company Lundbeck took steps to prevent use of its drug, Nembutal, which is the brand name for pentobarbital. Lundbeck took steps to prevent the use of its product in executions. And I think, historically, pharmaceutical companies have never wanted their drugs used in executions. They have always said publicly and to the states, to the departments of corrections, “This is not what we make products for. We make drugs to help people, to save lives, not to end them.” But really, Lundbeck was the first to take an affirmative step to prevent their use.

JUAN GONZÁLEZ: And what is the potential impact on drug supplies to the United States, if states continue now not only—well, they obviously, when they do the compounding, have to take initial drugs that they use, and then are changed or altered by the compounding pharmacies. Could you talk about the potential impact?

MEGAN McCRACKEN: Well, the use of compounded drugs in executions raises a lot of concerns. Compounded drugs are made to order, and so there’s no continuity from one batch to the next. So you could have an execution with a compounded drug that appears to go well or appears to go fine, but that doesn’t tell you anything about the compounded product that would be used in the next execution. And so, just as Cheryl was saying, whether or not the drug is pure, is potent, is contaminated, whether it has some trace ingredient that will cause pain and suffering, could elicit an immediate anaphylactic or other reaction, is unknown from one batch to the next.

AMY GOODMAN: In October, the drug company Fresenius Kabi applauded Missouri’s decision not to use Propofol for executions. Their CEO, John Ducker, said, quote, “This … will be welcomed by the medical community and patients nationwide who were deeply concerned about the potential of a drug shortage.” He added that the company—quote, “Such use is contrary to the FDA-approved indications for Propofol and would lead the European Union, where about 90 percent of the drug is manufactured, to impose severe restrictions on its export to the United States.” Explain the significance of this, Megan McCracken.

MEGAN McCRACKEN: Well, it’s very significant that Missouri stopped using Propofol in its execution protocol.

AMY GOODMAN: This is the drug that killed Michael Jackson?

MEGAN McCRACKEN: I don’t know too much about Michael Jackson’s death. I understand that is one drug that was in his system. But Propofol is well known to cause pain upon injection, and the state of Missouri knew that. And I think it’s important and significant that they did back away from that protocol. What’s important now is that the courts in Missouri and in other states take the time to gather the necessary information, let the prisoners present their evidence, and do a real examination of these protocols, of the use of new drugs, to determine if there are constitutional infirmities.

AMY GOODMAN: Would that be a de facto moratorium?

MEGAN McCRACKEN: Well, I think what’s happened recently in Louisiana is instructive. There, the court put a 90-day postponement on the execution of Mr. Sepulvado. That gives the court time to examine the new protocol, examine the new drugs that will be used, and determine whether or not the protocol, the drugs, the sourcing, all of that, will be constitutional, or whether it presents a substantial risk of pain and suffering to the condemned prisoners. You know, that is the appropriate and a sensible step for courts to take, to take the time and make sure they can get the information and the evidence they need to do the examination.

JUAN GONZÁLEZ: And what are the alternatives for states? Bringing back previous methods of execution? Could you talk about that debate that’s going on now?

MEGAN McCRACKEN: Sure. We’ve seen some states talking about bringing back the electric chair, or, you know, a lot of states have always had the electric chair as an option. But maybe in Virginia they’re saying they’re trying to have the electric chair be an option if they’re not able to get the lethal injection drugs—issues like that. In some states, it’s hard to tell when a legislator or a governor or a department of corrections spokesperson is calling for the electric chair, if that is a sincere policy option or a sincere policy plan, or is it an expression of frustration. You know, it’s hard to tell from state to state, but it does look like some states are considering returning to the electric chair or other options.

AMY GOODMAN: Firing squad? Is that one of them?

MEGAN McCRACKEN: The firing squad is an option in Utah, I believe. I’m not sure where else.

AMY GOODMAN: Could this lead to ending the death penalty? I mean, the United States is extremely unusual in being the only country in the industrialized world that has the death penalty. Is this leading to a re-evaluation of this?

MEGAN McCRACKEN: Well, I think any time you look at the details of the actual implementation of the death penalty, you uncover problems. So, there—one of the challenges with lethal injection practices is that there is so much secrecy surrounding all of the procedures. As Cheryl was saying, it’s extremely difficult to get the information about the pharmacies that are supplying the drugs, hard to get adequate and appropriate testing of the drugs to be used, and so it’s hard to get those assurances that the drugs will not cause pain and suffering. And so, with any aspect of the death penalty, once you start to dig beneath the surface, you find extraordinary problems. And so—and that is a reality that we will need to face.

AMY GOODMAN: Well, we want to thank you all for being with us. Megan McCracken is with the University of California, Berkeley, School of Law’s Death Penalty Clinic. Alan Johnson, thanks for joining us from Columbus, Ohio, reporter with The Columbus Dispatch, has covered most of the executions in the state since it resumed executions in 1999. And thanks so much to Cheryl Pilate, one of the lead attorneys for Herbert Smulls, who was executed January 29th with a lethal dose of pentobarbital. It was the state’s third execution since November and the third since switching to the new drug, which is made by a compounding pharmacy the state refuses to name.