TIME Crime and Punishment

Lethal Injection’s Fatal Flaws

Execution Drugs Secrecy
Kiichiro Sato—AP Final moments The viewing room at the Southern Ohio Correctional Facility looks onto the chamber where McGuire was executed

The method of execution was supposed to be quick, painless and humane. So why is it suddenly so troubling?

Seven days before his execution, convicted murderer Dennis McGuire gave his son a wristwatch. As the first person to be put to death using a new, untested, two-drug combination, McGuire wanted his son to observe his final moments and to time how long it would take for him to die.

A little after 10 a.m. on Jan. 16, 2014, McGuire, 53, walked into the brown-tiled execution chamber at the Southern Ohio Correctional Facility in Lucasville, pop. 2,757. As his son, daughter and daughter-in-law watched from the other side of the glass, McGuire climbed onto the gurney and stretched out his arms. He’d been told by his lawyers that Ohio’s new lethal-injection protocol could cause him to experience “air hunger” and feelings of terror as he tried to catch his breath.

Guards strapped McGuire’s wrists, waist and legs to the table, rolled up his sleeves and placed an IV in each arm near the elbow joint. Then McGuire used a microphone to say his last words. He apologized to the family of Joy Stewart, the 22-year-old pregnant woman he was convicted of kidnapping, raping and murdering in 1989, and he told his kids that he loved them and that he would see them again. Then the warden buttoned his suit jacket, a signal for the execution to begin. It was 10:27 a.m.

As 10 mg of the sedative midazolam and 50 mg of the painkiller hydromorphone entered his veins, McGuire tried waving at his family by opening his hands and closing them into fists. The waves soon slowed. He put his head back, stopped moving and closed his eyes. Then he started snoring so loudly that observers could hear it through the glass.

Remembering his father’s instructions, Dennis R. McGuire looked down at the watch: a little after 10:30 a.m. He looked back up to see his father trying to break free of the straps, arching his back and pushing his wrists and head against the gurney.

As the minutes went by, McGuire kept thrashing and making loud gurgling noises that sounded to his family like drowning. In the viewing room, McGuire’s daughter-in-law turned to a priest sitting nearby. “It shouldn’t be taking this long,” she said.

Finally, at 10:50 a.m., McGuire stopped moving. A prison guard looked over to McGuire’s daughter-in-law. “Sorry,” he mouthed. The official time of death was 10:53 a.m.

Injections on Hold

The execution took 26 minutes from start to finish, the longest (by four minutes) in Ohio since the state restored capital punishment 15 years ago and more than 15 minutes longer than lethal injections are expected to take.

For decades, most states with capital punishment used a standard combination of three drugs in lethal injections: a sedative, often sodium thiopental; pancuronium bromide as a paralytic agent; and potassium chloride to stop the heart. The drugs in the cocktail were easy to come by and effective, allowing for a relatively standard lethal-injection protocol throughout the U.S. The mix appeared to quickly sedate inmates, halt their breathing and then stop their heart. These days, the ways states are choosing to kill their most heinous criminals are anything but uniform.

States used to buy lethal-injection drugs from the same large, multinational pharmaceutical companies that make cholesterol medication and sleep aids. But in 2011, the European Commission–in Europe capital punishment is widely illegal–tightened controls on the sale of drugs for use in executions elsewhere. As stockpiles dwindled, states scrambled for alternative sources: manufacturers in developing countries, lightly regulated compounding pharmacies, even prison wardens buying drugs under their own names.

The upended supply chain has led many states to experiment with new combinations. Since 2010, 15 of the 32 states with the death penalty have used a new lethal-injection protocol. Nine states now shield the identity of their lethal-drug suppliers. The result has been high-profile mishaps that have called into question the future of what was once thought to be the most humane way to kill.

On Jan. 9, a week before Ohio used its new formula on McGuire, Oklahoma injected the convicted murderer Michael Lee Wilson with a combination of pentobarbital, vecuronium bromide and potassium chloride. As the cocktail was administered, Wilson reportedly said, “I feel my whole body burning,” before dying.

Nearly four months later, Oklahoma tried a different mix. On April 29, the state executed Clayton Lockett–convicted in 2000 of murdering a 19-year-old woman by shooting her and then burying her alive–with midazolam, vecuronium bromide and potassium chloride obtained from an undisclosed source. The midazolam was supposed to render Lockett unconscious before he received fatal doses of the other two drugs. Yet after seeming to pass out, Lockett opened his eyes and started mumbling and thrashing against the gurney. Believing he would survive, the warden sought to have the execution stayed and resumed at a later date. But it was too late. Forty-three minutes after the execution began, Lockett died of a heart attack.

State officials blamed the bungled execution on a collapsed vein, not the new drugs, and Oklahoma Governor Mary Fallin suspended all executions pending a review of the state’s lethal-injection protocol. But that did little to quiet the growing debate over whether the current form of lethal injection violates the ban on cruel and unusual punishment in the Eighth Amendment of the U.S. Constitution. President Obama called Lockett’s prolonged death “deeply disturbing” and instructed Attorney General Eric Holder to review how the death penalty is applied around the country.

Meanwhile, nine states have put executions on hold in part because of pending lawsuits from death-row inmates arguing that the use of untested drug combinations from unknown suppliers increases the chances that their deaths will be inhumane. And legislators in Missouri, Virginia and Wyoming have explored whether to bring back older execution methods like firing squads and the gas chamber as more dependable alternatives.

The mounting problems have led doctors, academics and others who study how America kills its criminals to question if the issues surrounding lethal injection may prompt a larger rethinking of capital punishment.

“Anytime you have a lethal injection that’s gone awry,” says Deborah Denno, a Fordham University law professor who has been studying lethal injection for 20 years, “it’s one more knot in the cord, one more indication that this is an incredibly troublesome procedure.”

The Humane Execution

America has long had a conflicted relationship with capital punishment. It maintains the death penalty as a way to deter the most horrendous crimes, but it insists that those criminals are entitled to a dignified end. Hanging–the dominant method of execution throughout the 19th century–was the nation’s first attempt to reconcile those goals. It was supplanted by electrocutions in the late 1800s. The advent of the gas chamber in the 1920s was billed as a more modern way to kill cleanly.

At capital punishment’s peak in the 1930s, the U.S. was averaging an execution every other day through a combination of the electric chair, the gas chamber and the firing squad. The numbers dropped significantly in the 1950s and 1960s, and executions stopped altogether in 1972 when the Supreme Court found the application of the death penalty unconstitutional. The respite didn’t last long.

In 1977, one year after the court reinstated the death penalty, a Utah firing squad made convicted murderer Gary Gilmore the first person put to death by the government in five years. Not long after, an Oklahoma legislator asked Dr. Jay Chapman, the state’s chief medical examiner, to find a more humane way to execute prisoners.

Chapman’s job was investigating deaths, not causing them, but he felt compelled to respond because he thought there was no reason that we should put animals to death more humanely than people. Within days, Chapman had an idea for an injectable mix of drugs that he thought would do the job as painlessly as possible. His combination of sodium thiopental, pancuronium bromide and potassium chloride wasn’t terribly complicated. He merely upped the dosages of what was widely used for general anesthesia.

The formula was never tested or medically reviewed. But Oklahoma legalized its use that year, and every state with capital punishment eventually did the same. “I guess they just blindly followed it,” Chapman says. “I had no idea in my wildest flight of fancy that it would’ve mushroomed into what it did.”

More than 1,200 people have since been put to death using the protocol Chapman recommended. But in the early 2000s, anesthesiologists began suspecting that some inmates were awake but paralyzed during their execution. David Lubarsky, an anesthesiologist at the University of Miami, reviewed the postmortem records of 49 executed patients and determined that 21 of them may have been conscious and potentially in excruciating pain as the final drug was administered.

“It wasn’t really unexpected,” Lubarsky says. “It was that nobody had ever bothered to look.”

The findings led to legal challenges against the three-drug protocol that eventually were heard by the Supreme Court in 2008. In Baze v. Rees, which addressed the constitutionality of a specific method of execution under the Eighth Amendment, the court upheld the legality of lethal injection, but the ruling prompted some states to rethink their drug protocols. In 2009, Ohio–the only state with a law requiring executions to be quick and painless–began using a single drug for lethal injection: the anesthetic sodium thiopental.

The following year, the Illinois-based drugmaker Hospira halted production of sodium thiopental because of manufacturing problems. After the Italian government prevented Hospira’s plant there from manufacturing the drug for U.S. prisons, the company stopped making it altogether. It was a pattern that would repeat many times over with drug companies balking when U.S. prison systems came calling.

When Hospira stopped making sodium thiopental, officials in Ohio decided to use the short-acting barbiturate pentobarbital. But after a series of critical articles in Danish newspapers and a letter signed by 60 doctors and academics in the leading British medical journal the Lancet, the drug’s Danish manufacturer blocked its sale to U.S. prisons. In Missouri, a similar attempt to buy propofol, the anesthetic that contributed to Michael Jackson’s death, was thwarted by its Germany-based maker, Fresenius Kabi.

The accident of geography–many leading drugmakers are based in Europe, and every European state except Belarus outlaws capital punishment–proved devastating for America’s system of state-sanctioned killing. “They’ve closed that door,” says Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment. “And that brings us to the current chapter where states are basically experimenting.”

Compounding the Problem

To fill the gap, some states have turned to compounding pharmacies for their supply of lethal drugs. These private pharmacies, which mix small amounts of drugs to order, are not regulated by the federal government and are only lightly managed by states. Without FDA oversight, the quality of drugs can differ from one pharmacy to another. A 2012 meningitis outbreak that killed 64 people was linked to a contaminated drug supply from one compounding pharmacy in Massachusetts.

Hospitals typically avoid such sources, but corrections officials don’t have the same reservations. At least seven states have obtained execution drugs or announced plans to get them from compounding pharmacies since 2012. But it could be even more. The exact number isn’t known: state corrections officials have gone to great lengths to protect the anonymity of their suppliers.

“My impression is there’s this whole culture of lethal-injection small talk behind closed doors at night, like a prison official from one state goes and visits another,” says Dr. Jonathan Groner, a professor of surgery at the Ohio State University College of Medicine. “There’s a lot of secrecy. It’s very hard to find out what they’re using and how they’re getting it.”

That’s by design. Since 2011, Arkansas, Colorado, Georgia, Oklahoma and South Dakota have enacted laws guaranteeing anonymity to suppliers of lethal-injection drugs, and similar legislation is pending in at least two other states. Georgia’s secrecy law was passed after it emerged that the state purchased execution drugs from Dream Pharma, a British compounding pharmacy that operated in the back of a storefront driving school in London. In Texas, the Woodlands Compounding Pharmacy demanded that pentobarbital purchased by the state be returned when its identity was leaked. And Missouri paid $11,000 in cash to obtain pentobarbital from a compounding pharmacy so as not to leave a paper trail.

“There’s never been anything like this,” says Fordham’s Denno. “States have gone haywire in their efforts to perpetuate executions at any cost.”

The Dead Man’s Dilemma

A week after McGuire’s execution in Ohio, his family filed a federal lawsuit against Hospira for selling drugs to the state, arguing that their father’s death was cruel and unusual punishment. The suit contends McGuire was deprived of oxygen while he remained conscious as part of a state-sponsored experiment with new forms of lethal injection.

After an internal review, the Ohio department of corrections announced in April that McGuire’s execution was “conducted in a constitutional manner” consistent with state policy. But the state said it was upping the dosage of the two drugs it used in all future executions because it “sees no reason not to increase the dosage levels.”

Yet other states are preparing to execute inmates in a similar fashion. Louisiana recently announced it would use the same two-drug combination as Ohio in an upcoming execution, while Virginia plans to include midazolam in a three-drug combination. Oklahoma used the sedative in Lockett’s execution.

But even when the results are messy, states have a certain amount of public leeway to tinker with their protocols. After all, the punishment is inflicted on those who’ve been convicted of doing much worse. Even as Obama called for a review of the death penalty, he made sure to assert society’s right to apply it. That’s a point on which the majority of Americans agree. Though support for the death penalty has been slowly falling, a recent Pew Research survey found that 63% of U.S. adults approve of capital punishment for convicted murderers.

Nor are those who study lethal injection in agreement over whether these recent instances constitute cruel and unusual punishment. How do you prove pain and suffering when the person who may have experienced it is no longer around to say so?

Dr. David Waisel, a professor of anesthesiology at Harvard Medical School, says that if the drugs had worked the way they were supposed to for McGuire, his execution should have been over in minutes. He says McGuire was likely in pain, which led to his desperate attempts to sit up and breathe. But there are anesthesiologists like Mark Dershwitz of the University of Massachusetts Medical School, who has appeared in court proceedings on behalf of states more than 50 times. In sworn testimony he regularly argues that the doses given to death-row inmates are so high that pain is almost an impossibility.

Dr. Mark Heath, a Columbia University anesthesiologist, says that while the circumstances surrounding the McGuire execution remain murky, he sees it as part of a pattern of executions using midazolam that have gone bad, citing the executions of McGuire, Lockett and William Happ, who was put to death in Florida in October 2013. All three inmates appeared unconscious following an injection of midazolam before moving around when additional drugs were administered.

The McGuire case brings up a problem at the heart of lethal injection: he was never given a paralytic agent, which prevents inmates from moving during the execution. Without it, those viewing McGuire’s execution could see what was happening to him as he gasped for breath inside the death chamber.

For years, anesthesiologists like Heath and Lubarsky have argued that a paralytic agent shouldn’t be used at all because it prevented anyone from knowing if an inmate was experiencing pain. Without that knowledge, they contend, it is not possible to know if the execution was truly humane. It’s possible that hundreds of inmates who have been killed by lethal injection reacted similarly to McGuire. But there is no way to be sure because their deaths were hidden under a fog of paralysis, which gets at the reason why a paralytic agent was included to begin with: It’s less for the patient and more for those watching it. It allows the living to walk away thinking that the most severe punishment was delivered as humanely as possible.

In Oklahoma, an investigation is under way to determine how Lockett died in April, but experts say it appears two things happened: the drugs weren’t administered correctly, and he wasn’t given enough midazolam to induce unconsciousness. Witnesses say Lockett mumbled “Something’s wrong” during the execution, and prison officials later said it took almost an hour to find a suitable vein (the IV was eventually placed in his groin). They didn’t realize the IV had become dislodged until more than 20 minutes after the execution began.

A Cleaner Way to Kill

Part of the problem is who’s doing the killing. Leading medical organizations discourage members from participating in executions–it contradicts the Hippocratic oath–so the job often falls to corrections officers, few of whom have training comparable to that of physicians. Nor do prisons execute as many inmates as they used to. Of the 3,088 inmates on death row last year, only 39 were put to death. Says Denno: “They’re not executing enough people to get good at it.”

When Chapman recommended the three-drug combination in Oklahoma in the 1970s, he says he imagined it would be given by properly trained administrators. In the years since, Chapman’s view on the proper protocol has evolved. He now thinks a massive overdose of just one drug–a sedative like thiopental–would be sufficient and much easier for states to administer. Some states are doing just that but with pentobarbital, largely because of the problems obtaining other drugs. Adopting a one-drug protocol could help states avoid some of the problems that have haunted recent executions. A single drug needs only one supplier, and it’s much easier for executioners to administer one massive dose than three.

Some politicians, meanwhile, are seeking to return to methods once abandoned as uncivilized. “I think it’s more inhumane to have someone strapped to a chair, watching a doctor poke them with a needle 10 times and then watch the drug flow down an IV to put them to sleep like a dog,” says Missouri state representative Rick Brattin. “I’m sorry. I find that more inhumane vs. a blindfold and your sentence being carried out by firing squad.”

It’s more likely that states will work to reform their lethal-injection protocols before reverting to the gun or the noose. But the needle now faces the same problem as the methods that preceded it: what once seemed a humane alternative no longer appears to be.

This appears in the May 26, 2014 issue of TIME.
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