TIME Courts

Supreme Court Ruling Won’t Stop Search for Execution Drugs

Thursday, Oct. 9, 2014 file photo
Sue Ogrocki—AP The death chamber at the Oklahoma State Penitentiary in McAlester, Okla., shown on Oct. 9, 2014. The Supreme Court upheld the state's lethal injection protocol on June 29, 2015

States still have problems with controversial sedative

The search for more-effective lethal-injection drugs and execution methods won’t end following the Supreme Court’s decision on Monday upholding Oklahoma’s use of a controversial sedative, legal experts and death-penalty opponents say.

In a narrow 5-to-4 ruling, the Supreme Court found that Oklahoma’s use of midazolam did not violate the Eighth Amendment’s ban on cruel and unusual punishment, finding that a group of three Oklahoma death-row inmates failed to prove that the sedative leads to a significant risk of severe pain. The sedative has been a drug of last resort for many states under pressure to carry out lethal injections, and it will likely still carry the stigma of being involved in three executions widely considered botched.

“Right now, if somebody offered something other than midazolam, states would jump on it,” says Richard Dieter, senior program director at the Death Penalty Information Center, an anti-death-penalty organization. “They will definitely be looking around at other drugs, but the question is whether they’ll find anything.”

For years, states used barbiturates such as sodium thiopental and pentobarbital in lethal injections that would render an inmate unconscious before additional drugs were administered. But a nationwide drug shortage and pressure on overseas pharmaceutical companies supplying states with drugs led to a search for alternatives and combinations that had never been used before. Last year, the prolonged executions of Dennis McGuire in Ohio, Clayton Lockett in Oklahoma and Joseph Wood in Arizona all experienced serious problems involving proper sedation following the use of midazolam. Lockett’s execution was at the heart of the Supreme Court case, Glossip v. Gross.

Four states currently use midazolam, which has come under scrutiny from anesthesiologists for not being strong enough to knock out an inmate before other drugs that cause severe pain are injected.

“I think many states will still shy away from it,” Dieter says, referring to the sedative. “Most states don’t want to use it.”

There is some precedent for states tinkering with their protocols even after the Supreme Court upheld specific drug combinations. In 2008, the court ruled in Baze v. Rees that Kentucky’s three-drug protocol at the time was constitutional. But the court’s Justices also wrote that it was possible for a lethal-injection method to be deemed unconstitutional if there were alternatives available that were considered more humane. That pushed states to continue their search for other drugs and methods, something that could happen again following Monday’s ruling.

“Legally, the court has given its stamp of approval,” says Deborah Denno, a Fordham University law professor who studies capital punishment. “But as an ethical issue, there still appears to be problems in using it. All of its problems were discussed in the case. Many states just have to use it out of desperation.”

Following the ruling, Oklahoma announced that it would resume lethal injections, which were put on hold pending the Supreme Court’s decision. Florida has also lifted its stay of execution.

“I think this ruling will make states feel a little more comfortable moving forward with different drugs and different methods,” says Doug Berman, a law professor at the Ohio State University. “But states will still have their own challenges securing the drug, even though the constitutional issue is out of the way.”

Death-penalty opponents, however, found one thing to applaud on Monday. In a lengthy dissent written by Justice Stephen Breyer and joined by Ruth Bader Ginsburg, the Justices called into question the entire death-penalty system and whether it violates the Constitution’s ban on cruel and unusual punishment. Breyer wrote that the delays involved in actually executing death-row inmates along with the arbitrariness of sentences over the past few decades may have led to the practice of capital punishment in the U.S. to be unconstitutional.

Thanks to lawsuits and difficulties states have had obtaining drugs, the U.S. last year executed the fewest inmates in almost two decades. Only 35 death row inmates were executed in 2014, compared with 98 in 1999, and at least one anti-death-penalty group looked to Monday’s decision as a potential harbinger.

“Justice Breyer asked, ‘How long are we going to have this conversation?’ By any measure, we’ve essentially abandoned the death penalty as a society,” says Diann Rust-Tierney, the executive director of the National Coalition to Abolish the Death Penalty, referring to the few executions that are now carried out in the U.S. “Some are clinging to this practice, but I’m convinced that the public won’t continue to support this.”

TIME Courts

Supreme Court Finds Oklahoma Lethal Injection Drug Constitutional

Thursday, Oct. 9, 2014 file photo
Sue Ogrocki—AP The newly renovated death chamber at the Oklahoma State Penitentiary in McAlester, Okla., on Oct 9, 2014.

The sedative was used in a series of executions widely considered botched

The U.S. Supreme Court ruled 5-4 Monday that Oklahoma’s lethal injection protocol is constitutional, finding that the use of the sedative midazolam in a three-drug cocktail does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment.

The central issue in the case was whether the drug can be used in executions without violating the Constitution. Oklahoma was one of small number of states that incorporated midazolam into a new lethal injection formula after drugs for the established protocol became harder to acquire. The case was brought by Richard Glossip, a longtime Oklahoma death row inmate, and two other prisoners.

The court found that the inmates failed to prove that midazolam given in large doses leads to a substantial risk of severe pain and did not identify an alternative method of execution that significantly reduces that risk, a standard established in Baze v. Rees, a 2008 case in which justices upheld Kentucky’s three-drug combination.

In the majority’s ruling, Justice Samuel Alito wrote that “because some risk of pain is inherent in any method of execution, we have held that Constitution does not require the avoidance of all risk of pain. … Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”

Following the ruling, Oklahoma announced it would resume executions, which were on hold pending the court’s decision.

“This marks the eighth time a court has upheld as constitutional the lethal injection protocol used by Oklahoma,” said Oklahoma Attorney General Scott Pruitt in a statement. “The Court’s ruling preserves the ability of the Department of Corrections to proceed with carrying out the punishment of death.”

In the last few years, the landscape has dramatically shifted as states have experimented with new drug combinations in response to dwindling supplies of drugs for established lethal protocols.

Last year, the executioners of three separate inmates—Dennis McGuire in Ohio, Clayton Lockett in Oklahoma and Joseph Wood in Arizona—appeared to experience serious problems in rendering those inmates unconscious. All three were given midazolam as part of the cocktail of drugs, raising questions about its effectiveness. A number of anesthesiologists have criticized states’ use of the drug, saying it’s not an appropriate anesthetic to use during an execution because it doesn’t induce a full state of unconsciousness, potentially leading to a painful execution that could be considered cruel and unusual.

In Lockett’s execution, which was at the heart of the case, the inmate apparently woke up during the procedure after officials had trouble securing an IV in Lockett’s arms. They eventually placed an IV in Lockett’s groin, where it become dislodged, allowing midazolam to leak into the inmate’s surrounding tissues instead of the bloodstream. The execution lasted almost 45 minutes.

Afterwards, Oklahoma suspended future executions and changed its lethal injection policies. Meanwhile, death row inmate Charles Warner and 20 other inmates sued the state over the practice. Warner was executed in January. Three other inmates, including Glossip, eventually brought the case before the Supreme Court.

In December, a district court concluded that midazolam rendered inmates “insensate to pain,” but the plaintiffs argued there was no evidence to support that and appealed.

The case ultimately turned on a very narrow question: whether midazolam sufficiently induced unconsciousness in which an inmate would not feel pain from two other drugs being administered, especially potassium chloride, which one inmate described during an execution as feeling as if he were on fire.

The prisoners were unable to convince the nine justices that midazolam was an inadequate drug for lethal injections or had a “ceiling effect” that rendered the drug ineffective in reducing pain at a certain point.

“Petitioners have not proved that any risk posed by midazolam is substantial when compared to known and available alternative methods of execution,” Alito wrote. “Second, they have failed to establish that the District Court committed clear error when it found that the use of midazolam will not result in severe pain and suffering.”

According to the Death Penalty Information Center, four states—Arizona, Florida, Ohio and Oklahoma—have used the drug during executions while five other states have proposed administering it.

Two justices—Stephen Breyer and Ruth Bader Ginsburg—deviated from ruling on the efficacy of midazolam and instead wrote that capital punishment itself may be unconstitutional. In a lengthy 46-page dissent, the justices said that the death penalty’s arbitrary application and the significant delays between sentencing and execution may violate the Eighth Amendment’s ban on cruel and unusual punishment, and they called for the court to fully address its constitutionality.

TIME Crime

Which State Will Be Next to Abolish the Death Penalty?

Death Penalty Nebraska
Nate Jenkins—AP Nebraska's lethal injection chamber at the State Penitentiary in Lincoln, Neb. On May 27, Nebraska became the 19th state to repeal the death penalty.

Several more are primed to repeal capital punishment

Nebraska became the first Republican-leaning state in four decades to abolish the death penalty on Wednesday, the latest signal that momentum is on the side of those who oppose capital punishment. And in the next few years, it’s likely that several more states will outlaw the practice.

Delaware may be the next in line. Governor Jack Markell, a Democrat, has pledged to sign a death penalty repeal bill that has already passed the Senate and is currently in the majority Democratic House Judiciary Committee. That’s only if Montana or New Hampshire don’t get there first; state lawmakers in Montana fell one vote short of passing a bill to abolish the death penalty in February, reaching a 50-50 split on the bill after the Senate passed its own version. Similarly, the New Hampshire Senate also reached a deadlocked repeal vote in April 2014.

But there’s a whole list of states that might yet follow in Nebraska’s footsteps. The seven states that have now done away with capital punishment since 2007 all had one thing in common: they essentially had stopped using their execution chambers altogether. And six states with death penalty laws still on the books — Colorado, Kansas, New Hampshire, Oregon, Pennsylvania and Wyoming—haven’t executed anyone in more than a decade.

“When you look at most repeals, they were all in states in which the death penalty had fallen into disuse,” says Robert Dunham, executive director of the Death Penalty Information Center, an anti-death penalty group. “Nebraska followed in the pattern of states in which the death penalty had been functionally discarded in practice.”

According to the Pew Research Center, 56% of Americans still support the death penalty, but that number is at its lowest in four decades. Opposition is coming not just from Democrats, who have historically opposed capital punishment, but increasingly from Republicans who believe the death penalty is too costly and does nothing to deter people from the most heinous of crimes.

In both Kansas and Wyoming — states which haven’t executed anyone in years — conservative lawmakers have introduced repeal legislation in both states, and in South Dakota, another red-leaning state, several conservative legislators have voiced support for doing away with capital punishment. Last year, legislators in the South Dakota House were one vote shy of getting a bill to the floor.

“The death penalty is no longer getting a pass,” says Diann Rust-Tierney, executive director for the National Coalition to Abolish the Death Penalty. “People may support the idea in the abstract, but when they see how it’s done, how it’s doing nothing to enhance public safety, and when they see innocent people being released from death row, they see that they can’t square it with their other values.”

TIME Crime

Why the End of Capital Punishment Is Near

The lethal injection facility at San Quentin State Prison in San Quentin, Calif. on Sept. 21, 2010.
Eric Risberg—AP The lethal injection facility at San Quentin State Prison in San Quentin, Calif. on Sept. 21, 2010.

Bungled executions. Backlogged courts. And three more reasons the modern death penalty is a failed experiment

The case of Dzhokhar Tsarnaev absorbed Americans as no death-penalty drama has in years. The saga of his crime and punishment began with the shocking bloodbath at the 2013 Boston Marathon, continued through the televised manhunt that paralyzed a major city and culminated in the death sentence handed down by a federal jury on May 15 after a two-phase trial…

Read the full story here.


This appears in the June 08, 2015 issue of TIME.
TIME Saudi Arabia

Saudi Arabia Is Looking for Executioners to Carry Out Public Beheadings

A mock execution scene in protest of Saudi Arabia beheadings in Dhaka October 15, 2011
Andrew Biraj—Reuters A mock execution scene in protest of Saudi Arabia beheadings in Dhaka, Bangladesh, on Oct 15, 2011

How long before they bring in the headhunters?

On Monday, eight new job openings for “religious functionaries” tasked with “carrying out the death sentence according to Islamic Shari’a after it is ordered by a legal ruling” appeared on the website of Saudi Arabia’s Ministry of Civil Service.

Capital punishment is administered for crimes like murder, rape, adultery, witchcraft and drug offenses in the Islamic kingdom, which is currently witnessing an uptick in beheadings under Saudi Arabia’s new King Salman, the New York Times reports.

In 2015, the pace of executions accelerated to 85 in just a few months — already set to eclipse last year’s total of 88 beheadings. It is not clear why there has been a sharp increase, but new judges have swiftly been plowing through a case backlog, according to Reuters.

The vacancies do not specify educational credentials or required skills, but the executioners are ideally adroit swordsmen, as the most common execution implement is a curved scimitar.

TIME Crime

A Gruesome Historical Argument Against the Death Penalty

Prison
Frank van den Bergh—Getty Images

May 4, 1990: A death-row inmate in Florida dies in a botched execution by electric chair

It’s not easy being an executioner. Doing the job well earns no one’s praise; doing it badly leads to accusations of cruel and unusual punishment. Such was the charge on this day, May 4, in 1990, when a Florida inmate’s death by electric chair ended in torture for the inmate and trauma for horrified observers.

Jesse Tafero was convicted of fatally shooting two police officers during a 1976 traffic stop. By the time of his death, the electric chair was Florida’s standard method of execution. But because of what critics have described as poor training for executioners and limited oversight for executions themselves, the process did not go smoothly.

The trouble began when a sponge used in the chair’s headpiece wore out and had to be replaced. “There’s no factory or parts catalog for execution devices, so the prison sent a guy to pick up a sponge at the store,” TIME later reported. “Problem was, he bought a synthetic sponge instead of a genuine sea sponge”; the latter type was required to handle the electric current without catching fire.

Catch fire it did. Flames on Tafero’s head were nearly a foot high, according to one witness, but initially failed to kill him. The current was reapplied three times, since he was still breathing after the first two times.

“It takes seven minutes before the prison doctor pronounces him dead, seven minutes of heaving, nodding, flame, and smoke,” the witness, Ellen McGarrahan, wrote for Slate.

Tafero’s death breathed new life into the national debate over the death penalty — particularly regarding the humaneness of execution methods and whether they are sufficiently regulated. Tafero’s wasn’t the first or the last to end in torture, after all: The 2014 book Gruesome Spectacles: Botched Executions and America’s Death Penalty concludes that at least three percent of all American executions from 1890 to 2010 were botched, and lists 276 that are known to have gone wrong out of the roughly 9,000 over that time span.

The manner of Tafero’s death didn’t stop Florida lawmakers from continuing to embrace the electric chair. But a nearly identical malfunction occurred in 1997, during the execution of convicted murderer Pedro Medina, leaving one witness to remark, per Gruesome Spectacles, “[A] solid flame covered his whole head, from one side to the other. I had the impression of somebody being burned alive.” The state finally switched to death by lethal injection in 2000.

And while lethal injection is now the primary execution method in all states that enforce the death penalty, it is not without its own detractors. In 2008, arguments against the three-drug cocktail used by Kentucky (and other states) reached the Supreme Court, which ruled that the method did not constitute cruel and unusual punishment. The court is now hearing a similar case, this time brought by death-row inmates in Oklahoma, over whether a sedative used in lethal injections is strong enough to prevent undue suffering. If the court rules against this method, according to the New York Times, some states will consider resurrecting the electric chair.

But Tafero’s execution also became a talking point in another argument against the death penalty: the possibility of killing the wrong person. After Tafero’s harrowing death, the key witness against him admitted that he himself had pulled the trigger in the traffic-stop gunfight. Although prosecutors continued to insist that they’d gotten the right man, many concluded that Tafero was, in fact, innocent.

Read more about the Supreme Court and the death penalty, here in the TIME archives: Death Penalty Walking

TIME Crime

The Dawn of a New Form of Capital Punishment

Why Oklahoma became the first state to approve nitrogen gas as a lethal injection alternative

In the weeks following the execution of Clayton Lockett, the Oklahoma death row inmate whose botched lethal injection triggered a statewide moratorium on executions, lawmakers there began rethinking their approach to capital punishment. Among the people they called on to help was Michael Copeland.

Copeland is a criminal justice professor at East Central University, a public school with about 6,000 students in Ada, Okla. From 2010 to 2013, he was the director of the anti-fraud unit at the Oklahoma Insurance Department. Before that, he was an assistant attorney general for the Republic of Palau, a small island nation in the Pacific Ocean. Copeland is not a doctor. He has no medical training. But what he does have is a close relationship with Oklahoma legislators, some of whom he’s known for years. And they often ask Copeland to conduct research and gather data that could help shape bills. He’s worked with legislators on reducing the number of uninsured motorists, for example, and helped draft guidelines for the transportation of the mentally ill who are a danger to themselves and others.

About a year ago, Oklahoma Rep. Mike Christian, who attended high school with Copeland, asked his old friend for ideas on how to replace the increasingly problematic method of lethal injection. After studying the issue, Copeland recommended death by nitrogen, a method that has never been used for a state-sanctioned killing in the U.S.

Nevertheless, Oklahoma has embraced the idea. On Friday, Gov. Mary Fallin, a Republican, signed a bill into law, based on Copeland’s research, that would make nitrogen asphyxiation the state’s execution method if lethal injection is ruled unconstitutional or the necessary drugs are no longer available. The law marks a new frontier in the increasingly charged debate over the future of capital punishment in America. And it ensured that the state where lethal injection originated three decades ago has resumed its place as the nation’s execution laboratory.

The Problems With Lethal Injection

The idea of nitrogen asphyxiation or “nitrogen hypoxia” has been been batted around as a method of capital punishment for years. A 1995 National Review article titled “Killing With Kindness: Capital Punishment by Nitrogen Asphyxiation,” for example, recommended that states use nitrogen gas after a federal district court deemed California’s gas chamber unconstitutional. But the method largely remained on the fringes of the capital punishment debate.

MORE: Texas Running Out of Execution Drug

Twenty years later, the landscape has changed dramatically. Today, a number of states are facing severe lethal injection drug shortages after pharmaceutical companies stopped providing drugs for the procedure. Texas, for example, is down to enough pentobarbital for just a handful of executions. Legislators in Alabama, Tennessee and Virginia have introduced legislation to bring back the electric chair because of problems obtaining drugs, while Utah has resurrected the firing squad. And looming over it all is a Supreme Court case this summer involving Oklahoma’s three-drug protocol. The court’s decision could potentially force states to abandon lethal injection altogether.

“The problem we’re having in Oklahoma now and several other states is that while lethal injections used to be an effective and humane way to execute someone, it’s really not anymore,” Copeland says. “The facts on the ground have changed. Now it’s like an experiment every time. Here’s some drugs and maybe we’ll have a paramedic administer it and let’s see what happens. Maybe this will kill ‘em. It’s kind of haphazard, and I think it’s only going to get worse.”

No one could’ve foreseen lethal injection’s problems in 1977, when an Oklahoma legislator asked Dr. Jay Chapman, the state medical examiner, to develop what was intended to be a more humane execution alternative to firing squads. Chapman developed a three-drug cocktail that soon became the default method of executions nationwide. But by 2010, European drug makers acceded to pressure from death penalty opponents and stopped selling drugs for use in executions. As supplies dwindled, states scrambled to figure out how to keep killing without the three drugs they had long relied on: sodium thiopental, a sedative; pancuronium bromide, a paralytic agent; and potassium chloride, a compound that stops the heart.

Some states switched to using just one drug, often pentobarbital, a barbiturate. Others began using midazolam, a sedative that has been scrutinized by some anesthesiologists for not being strong enough to properly induce unconsciousness and is at the heart of the upcoming Supreme Court case. Many states have turned to compounding pharmacies, which are unregulated by the federal government, for their supply while passing secrecy laws to keep those drug makers shielded from public view.

Last year, there were three executions widely considered botched, all of which included the sedative midazolam. Dennis McGuire, an Ohio inmate convicted of rape and murder, died after reportedly snoring and snorting during his lethal injection. Joseph Wood, an Arizona inmate, reportedly gasped on the gurney in an execution that took nearly two hours. And in Oklahoma, Lockett died in a lethal injection that went so awry that documents obtained by the Tulsa World show that Lockett essentially helped his executioners find a vein after they failed multiple times to insert IVs into his arms and legs. It was that chaotic scene that sent Oklahoma legislators on the search for an alternative.

The Search For A Better Way to Kill

Copeland says there were four main criteria he tried to meet in recommending a new execution method: 1) it had to be humane; 2) it couldn’t have supply problems; 3) it had to be simple to administer; 4) it could be done without medical professionals. Nitrogen, Copeland says, satisfies all four.

MORE: The Harsh Reality of Execution by Firing Squad

The method would likely consist of a gas mask that covers the head and neck, which would be filled with pure nitrogen from a nearby canister. That nitrogen would displace the oxygen, leading to death by oxygen deprivation, says Solomon Snyder, a neuroscientist at Johns Hopkins Medical School who is not involved in the Oklahoma bill.

The method’s supporters cite accidental deaths that were reportedly peaceful — such as divers who took in too much nitrogen and pilots whose oxygen levels fell too low — as evidence of the chemical’s efficacy. Nitrogen hypoxia has also been recommended by some advocates of euthanasia in places without so-called right to die laws. The gas is also relatively cheap and abundant, decreasing concerns about supply problems.

“Execution via nitrogen hypoxia is a painless form of capital punishment that is simple to administer, doesn’t depend upon the aid of the medical community, and is not subject to the supply constraints we are faced with when using the current three-drug cocktail protocol,” State Rep. Mike Christian, who wrote the House bill authorizing nitrogen gas, said in an e-mail.

Copeland says that physicians, who declined to testify in front of state legislators, confirmed for a 14-page study he co-authored that a lack of oxygen would lead someone to pass out within about 15 seconds, halt brain waves within 30 to 45 seconds and stop the heart within two to three minutes. In September, Copeland presented his findings to the Oklahoma House Judiciary Committee. His presentation included YouTube videos of people passing out from too much helium, another inert gas. Pilots testified about experiencing hypoxia, describing the gradual decrease of oxygen as undetectable, and Copeland claims the effects with nitrogen would be similar.

“We have a lot of parallels,” Copeland says. “We’ve just never used [nitrogen] in this context.”

Changing the context could prove problematic. Administrating the gas within a prison is much different than the instances in which pilots and divers have slowly and accidentally experienced a lack of oxygen. Dr. Michael Weiden, a pulmonary expert at NYU School of Medicine, says that while nitrogen could be administered without medical professionals, using it for capital punishment could create an ironic consequence: the need for sedation.

“What’s going to prevent someone from holding their breath and prolonging their execution?” says Weiden, who supports the death penalty for certain crimes. “People are going to hold their breath as the oxygen leaks out of their bodies. They’ll struggle, and somebody who thinks that an individual who’s asphyxiating will not freak out without sedation is foolish.”

The American Medical Association’s ethical guidelines require that “physicians can only certify death, provided that the condemned has been declared dead by another person,” according to spokesman R.J. Mills. The association does not have a position on the Oklahoma bill.

Despite the unanswered questions, more states appear to be considering nitrogen as they plan for a future without lethal injection. Copeland says he has been in touch with corrections officials in several states, some of which he says are “ahead of us in terms of protocol.” Copeland would not disclose the states.

Oklahoma Sen. Anthony Sykes, who sponsored the nitrogen bill in the state Senate, says Louisiana and Texas have both shown interest in the method. Louisiana Department of Corrections Secretary James LeBlanc told a legislative committee last year that “nitrogen is the next big thing” and described it as a “painless way to go.” In February, the state’s corrections department issued a report recommending nitrogen hypoxia as an alternative method of execution.

A spokesperson for the Texas Department of Criminal Justice would not confirm that the state was considering alternative execution methods.

To some lethal injection experts the interest in nitrogen has familiar echoes of the discussion nearly 40 years ago, when states were contemplating methods other than firing squads and gas chambers.

“It looks fool-proof,” says Deborah Denno, a law professor at Fordham University who opposes the death penalty over what she says is its inequitable application in the U.S. “It’s easy to look at these incidents in a non-prison setting and say they die humanely. But implementing that into a prison setting, the conditions aren’t the same. The people doing this aren’t the same.”

Corrections officials have varied levels of training and experience with lethal injection, which can lead to the sorts of errors that contributed to Lockett’s prolonged execution. Denno cautions that the same problems could happen with the administration of nitrogen.

Richard Dieter, the senior program director of the Death Penalty Information Center, an anti-death penalty group, says Oklahoma would essentially be conducting another experiment if it went adopted nitrogen hypoxia.

MORE: Georgia Postpones 2 Execution Over ‘Cloudy’ Drugs

“This method has never been used before in an execution,” Dieter says. “I think it’s premature to accept a legislator’s promise that all will go well. It’s one thing to say that people have died of oxygen deprivation and another to strap an unwilling subject in a chamber and watch the reactions and resistance for the first time.”

Now that Fallin has signed the bill into law, Oklahoma has sidestepped something a number of other states have been forced into: a return to methods that were all but abandoned decades ago.

“You got to remember that if this doesn’t pass, the alternative is not to go back to lethal injection,” Copeland said in February. “If for some reason lethal injection either becomes unavailable or it’s unconstitutional, we go to the electric chair. Maybe you don’t believe in the death penalty, but certainly you believe that if we’re going to have a death penalty, it should be done in a humane way. And I think [nitrogen] is better than the electric chair by a wide margin.”

TIME Crime

Texas to Execute Inmate as Lethal Injection Drug Supply Dwindles

Kent Sprouse, 42, is scheduled for lethal injection on April 9, 2015, for killing a police officer and another man outside a gas station convenience store about 20 miles south of Dallas.
AP Kent Sprouse, 42, is scheduled for lethal injection on April 9, 2015, for killing a police officer and another man outside a gas station convenience store about 20 miles south of Dallas.

The state has enough pentobarbital for four more executions

Texas plans to carry out its first execution Thursday since obtaining a new batch of lethal injection drugs in March.

Kent Sprouse, who killed a police officer and another man in 2002 outside a convenience store near Dallas, is scheduled to be put to death at 6 p.m. Thursday.

Last month, Texas announced it had enough lethal injection drugs to carry out Sprouse’s execution but would need an additional supply to carry out three more executions scheduled in April. But within weeks, the state said it had obtained another batch of the drug, pentobarbital. At the time, The Guardian reported that Texas purchased the batch “from a licensed pharmacy that has the ability to compound.”

In the last few years, states with the death penalty have been forced to turn to compounding pharmacies, which are unregulated by the federal government, to obtain lethal injection drugs, as a number of pharmaceutical companies have elected not to sell drugs for lethal injections. The Texas Department of Criminal Justice keeps the identity of its drug suppliers secret over fears that public pressure on participating pharmacies would limit the state’s ability to carry out executions.

MORE: Lethal Injection Execution Halted in Texas

In March, both the American Pharmacists Association and the International Academy of Compounding Pharmacists urged their members not to sell drugs for use in capital punishment. But that decision isn’t binding, and it’s unclear how effective it will be on member pharmacies.

Sprouse’s execution will be the 11th in the U.S. this year and the fifth in Texas, which has executed more inmates—522—than any other state since 1976. The state has another three executions scheduled for May and June but has yet to obtain enough drugs to carry them out, according to Jason Clark, a Texas Department of Criminal Justice spokesperson.

TIME Crime

The Strange Story of the Man Who Chose Execution By Firing Squad

Gilmore
Keystone / Getty Images Gary Gilmore pictured in January of 1977

How Gary Gilmore's 1977 execution came to pass

Firing squads have returned to the headlines this week, as Utah took steps toward allowing that method of execution if other options become unavailable. Even though some experts say firing squads are an effective method of carrying out capital sentences, the majority of Americans are put off by the idea.

But when Utah executed a Death Row inmate by firing squad four decades ago, citizens felt very differently about it. In 1976, when Gary Mark Gilmore was sentenced to death by firing squad, TIME reported that dozens of men were calling the Utah state prison warden asking to be one of the shooters. Gilmore, then 35, was a long-time resident of criminal-justice institutions, starting with a reformatory at age 14; in 1975, he killed a gas-station attendant and a motel clerk, apparently without motive. And, when his lawyers appealed, he tried to force them not to. His execution was to be the nation’s first after the Supreme Court lifted a decade-long moratorium on the death penalty.

His argument? To be executed would be to “die with dignity,” he said. And he took advantage of Utah’s law allowing a prisoner to choose his method of execution from either hanging or firing squad to elect for the latter. In its Nov. 22 1976 issue, TIME described how it would go ahead:

If Gilmore is shot, five volunteer marksmen will do the job. They will probably be law-enforcement officials, though none will be from the staff of the prison 20 miles from Salt Lake City where the death sentence will be carried out. Gilmore, hooded and strapped by the neck, arms and legs to a wooden chair, will have a circular piece of black cloth pinned over his heart. Resting high-powered .30-cal. Winchester hunting rifles on a two-by-four railing, the squad will simultaneously fire one round from 20 ft. away. There is no provision for a second volley or a coup de grace, and one rifle will be loaded with a blank so that no one will know for sure that he was responsible for the condemned man’s death.

On the other hand, according to the new lawyer he chose, Gilmore believed that life in prison was cruel and unusual. So much so, that when his execution was stayed, his girlfriend smuggled Seconal sleeping pills to him during a visit, and they both took overdoses. He was rushed to a hospital and ended up back in prison, and progress on his case was delayed while he recovered. She fell into a coma.

In December, following a hunger strike by Gilmore, a hearing board decided that his wish to die by firing squad could move forward. Asked by a judge whether he had anything to say, his only request was not to be hooded during the execution.

Still, even though the date was set, the execution did not happen as planned, as TIME reported on Dec. 13 the same year:

Though Gilmore has persistently disavowed all lawyers who tried to win him a reprieve, the decisive intervention came when Stanford Law Professor Anthony G. Amsterdam moved in the following day, on behalf of Gilmore’s mother. Amsterdam, a leader in the fight against capital punishment for a decade, filed a petition with Supreme Court Justice Byron White, who is responsible for emergency appeals in the Utah area. “The need for a stay of execution is obvious,” said Amsterdam. “Such stays are commonly granted in death cases. Indeed, the only factor that makes this application unusual is [Gilmore’s] assertion that he wished to be executed.”

Among Amsterdam’s reasons for appealing: that there may have been judicial errors in the original trial, that Gilmore may have waived his constitutional rights without fully understanding them, that his defense lawyers were inadequate, and that Utah’s capital punishment law may be unconstitutional. Justice White duly turned the petition over to the full court. The next day the court voted 6 to 3 to stay the execution for one day so that Utah state authorities can provide more information. That demand is very likely to require several further delays.

Meanwhile, Gilmore and his family again got rid of his lawyer, and sold the rights to his story in a deal that resulted in a 1982 movie, The Executioner’s Song, in which Tommy Lee Jones played Gilmore. The entrepreneur who bought the rights was invited to witness Gilmore’s execution.

That event finally took place in January of 1977. “It was an old mahogany office chair with a black vinyl seat and back,” TIME reported on Jan. 31. “There, in an old tannery known as the Slaughterhouse in the southwest corner of the Utah State Prison, sat Gary Mark Gilmore, 36, freshly shaven and wearing a black T shirt, crumpled white trousers and red, white and blue sneakers. His neck, waist, wrists and feet were loosely bound to the chair. Twenty-six feet away hung a sailcloth partition with five slits. Hidden behind the curtain stood five riflemen armed with .30-.30 deer rifles, four loaded with steel-jacketed shells, the fifth with a blank.”

Gilmore was administered his last rites. A target was pinned over his heart; he was hooded, despite his earlier request. All four of the loaded bullets hit their target. Gary Gilmore became the first prisoner to be executed in the U.S. in a decade.

Gilmore’s desire to die, as well as the timing of his execution, made his story irresistible to many Americans, especially at a time where public approval of capital punishment ran high. But those factors that made his case intriguing were the same ones that still limit what can be learned from his case. After all, a precedent that relies on an inmate who advocated for his own execution is one with few applications. “Gilmore would not allow the legal points to be made,” law professor Charles L. Black Jr. explained at the time. “Gilmore cannot give away other people’s rights.”

Read more about Gary Gilmore, here in the TIME Vault: After Gilmore, Who’s Next to Die?

TIME Crime

The Harsh Reality of Execution by Firing Squad

The firing squad execution chamber at the Utah State Prison in Draper, Utah in 2010.
Trent Nelson—AP The firing squad execution chamber at the Utah State Prison in Draper, Utah in 2010.

It's undeniably brutal — but experts say it may be the most effective way to carry out the death penalty

The Utah State Senate voted Tuesday to bring back firing squads if lethal injection drugs become unavailable, which would make it the only state in the union to allow the method.

Only three death row inmates have been executed by firing squad since 1976, all in Utah, with the last being Ronnie Lee Gardner in 2010. The method is considered cruel by many Americans; only 12% said they would be open to it in a 2014 NBC News poll. But experts say it may actually be the most effective way for states to execute inmates.

“Firing squad is the only execution method for which people are trained,” says Fordham University law professor Deborah Denno, who studies lethal injection and other execution methods. “It’s the most certain, the most expert way of executing and from all we know it would be the quickest.”

In previous executions, Utah has used five gunmen who each aim at the inmate’s heart. One of the executioners fires a blank, so it remains uncertain as to who fired the fatal shots. Any trained marksman willing to participate could theoretically be an executioner, whereas with lethal injections, prison officials or others with no certified medical training must hook up death row inmates to IVs.

There are few, if any, ways to determine how painful an execution by firing squad would be. But it does appear to bring about death more quickly than lethal injection. In 1977, when Gary Gilmore was the first person executed by firing squad in Utah following the moratorium on capital punishment in the U.S., a doctor pronounced Gilmore dead within two minutes.

MORE: Execution Problems Revive Talk of Using Firing Squads and the Electric Chair

There have been at least two firing squad executions that could be considered botched. One occurred in 1879, when Wallace Wilkerson moved just enough for the executioners to miss his heart. Another came in 1951 when gunmen misfired and hit inmate Eliseo Mares in the stomach and hip. But firing squads appear to have a much better track record than lethal injection. Last year, three lethal injection executions were considered botched.

“The death probably happens within seconds,” says Dr. Jonathan Groner, a pediatric surgeon at The Ohio State University who studies executions. “There is no way to measure the pain, but there’s anecdotal evidence that it’s less painful.”

Groner cites several lethal injections in the last year, including the executions of Clayton Lockett in Oklahoma and Dennis McGuire in Ohio, which resulted in prolonged deaths in which witnesses described the inmates groaning and writhing on the gurney.

But patients who die from heart complications can lose consciousness within seconds, he says. There is also a bizarre experiment from 1938 in which doctors monitored the electrical activity of the heart of a Utah man who was being executed, which showed that his heart essentially became inactive within about 20 seconds of the shots being fired.

But over the years, the public has largely decided that firing squad is cruel in a modern society that has the tools to put inmates to sleep, which often appears painless. Even Gardner’s brother, Randy, came out this week describing the brutality of Ronnie’s execution in 2010. Death by firing squad seems like an antiquated and crude practice, whereas death by lethal injection can appear comparatively humane—even though it’s unclear what sort of pain inmates are in. A number of legal challenges claim it fails the Eighth Amendment’s prohibition on cruel and unusual punishment.

“Is the firing squad needlessly cruel punishment? The executed cannot say,” says Joel Zivot, an Emory Healthcare anesthesiologist who studies executions and lethal injection. “These days, debates about methods of execution seem to be setting aside questions of cruelty evaluation and are more about having any method on hand.”

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