How lethal injection problems could end the death penalty

All but one of the 27 states that have the death penalty, which is opposed by 40% of Americans, are using lethal injection to execute convicted murderers on death row.

A review of the comments of the legislators who sponsored lethal injection bills in their states indicated that “the allure of lethal injection was a visually palatable execution that would be easier for the public to accept,” said Corinna Barrett Lain, the S.D. Roberts & Sandra Moore professor of law at the University of Richmond School of Law in Virginia, in a recent talk to the League of Women Voters of Oak Ridge.

“With lethal injection you don’t have to deal with the sizzling smell and burning flesh of electrocution,” she said. “Or people gasping for breath in the gas chamber. Or the sight of blood with the firing squad. When lethal injection is not botched, it looks like the person being executed is drifting off to sleep” like a dying pet being euthanized, or killed humanely, to stop its suffering.

But the public is gradually learning that lethal injection is not a humane punishment, said Lain, who argued that lethal injection litigation and other issues could ultimately end the death penalty nationwide.

She has written a book on lethal injection that she claimed she did not want to write, but felt compelled to complete for several reasons. The book “Secrets of the Killing State: The Untold Story of Lethal Injection” will be published next year.

What lethal injection does to the human body

In a study published in 2020 and reported by National Public Radio, she said, more than 200 execution autopsies nationwide showed that 84% of the executed prisoners’ lungs exhibited acute pulmonary edema. The reason is that the injected drugs chemically burn capillaries in the lungs, causing them to become leaky so fluid seeps into them.

“That meant they had been slowly drowning to death in their own fluids,” she said. “Experts said they must have felt like they had been waterboarded to death.”

One drug that also causes the injected prisoner to struggle to breathe is a paralytic, she said, explaining that this muscle relaxant is used by surgeons to minimize patients’ movements to optimize operating conditions. But patients given paralytics are put on breathing machines.

“The paralytic relaxes the muscles in the face of the person being executed and gives him a nice peaceful look even though he may be struggling to breathe and not dying peacefully,” she said. The problem is that the drug paralyzes the diaphragm muscles, which pushes air in and out, stopping the breathing.

Lain said one doctor told her that “not being able to breathe is one of the most powerful, excruciating feelings known to man. Panic and terror and the attempt to fight take over. Even human beings who are underwater will reach such a level of agony that they will be compelled to take a breath within about a minute, which is how people drown.”

Noting that Gov. Bill Lee put Tennessee’s executions on hold in 2022 because of problems with lethal injection, she surprised the LWVOR audience by stating that Tennessee’s three-drug protocol requires 10 to 15 syringes and that the injections are done by prison guards, not doctors, nurses or other medically trained personnel.

“(And) corrections officers are among the lowest paid of state employees,” she said.

In the past 10 years, Lain noted, “lethal injection litigation has held up more executions than any other claim, such as racial inequality or evidence of a convict’s innocence. Lethal injection is bringing the death penalty to its knees. It's like throwing a fistful of sand into the machinery of death, grinding it to a halt.”

She gave several reasons why the death penalty in the United States may ultimately be abolished.

“Lethal injection litigation has made the death penalty salient again,” she said. “The point of using lethal injection was to minimize opposition to the death penalty by making people think very little about at all,” she said. “It was supposed to be a way for executions to go quietly into the night.”

Owing to lethal injection litigation and bad publicity produced by investigative journalism, unwanted attention has been brought to this type of capital punishment, Lain remarked.

She said the first chapter of her book tells about the famously botched execution of Clayton Lockett 10 years ago in Oklahoma. It was one of the top ten news stories of 2014.

Lain mentioned that investigative reporters revealed the man behind Harris Pharma from which Texas and Arizona had tried to purchase a lethal injection drug. Harris, who had a small office in India, was contracted to take a pharmaceutical company’s samples to African hospitals to help the firm gain a drug distribution deal. But instead, Harris “misappropriated the drugs and sold them to the states for use in lethal injections,” she said.

In another case, she added, “Missouri was caught buying drugs from a compounding pharmacy that in the last inspection had 1,800 safety regulatory violations. The place ended up closing because of all the bad publicity.”

She noted that the dyslexic doctor who measured, mixed and loaded drugs into the syringes used by prison guards for lethal injections had more than 20 malpractice lawsuits, and his hospital privileges at two medical centers were revoked.

A final reason why Lain thinks that lethal injection issues could help end the death penalty is that the bad publicity “has inadvertently brought new allies to the abolitionist cause.”

One ally is Europe, she said, since “it has been anti-death penalty for decades because the Holocaust during World War II revealed the dangers of the killing state, a state that has the ability to kill its own citizens. The abolitionist European Union has been working hard to get the United States to end the death penalty.”

In 2010, European companies realized they were exporting drugs to the U.S. that were being used for lethal injection. EU countries passed export control laws that prevented European drug companies from supplying ingredients to the United States that may be used in lethal injections.

A shortage of drugs needed by death penalty states ensued, contributing to a decline in executions. The shortage worsened because the U.S. drug companies also became allies to the abolitionist cause. Lain said they refused to sell drugs to the states for use in executions by lethal injection.

Lain gave examples of American drug companies’ mottos such as “Drugs for Life,” “Advancing Wellness” and “Live Longer Better.” She added, “Big Pharma recognized that selling drugs to the state to kill people was not good for their bottom line.

“Some of these companies had been sued when there was a botched execution for which their drugs were used,” she said. “Over 60 drug manufacturers now have end-user agreements on their sales to keep the drugs they market out of executioners' hands.”

She noted that drugs used for lethal injection are on the World Health Organization’s essential medicines list and on the drug shortage list of the Food and Drug Administration.

As a result, another ally opposing lethal injection for killing convicts is the medical community. Quoting from her forthcoming book, Lain said, “A 2017 study found that a stockpile of lethal injection drugs in just four states was enough to treat 11,257 patients. In 2020, the COVID crisis led a group of health care professionals to write an open letter to state corrections departments.”

Here is an excerpt from the letter: “As pharmacists, public health experts, and frontline intensive care unit doctors serving patients at bedside, we write to inform you that many of the medicines your states are currently holding for lethal injection are in short supply and desperately needed to treat patients suffering from COVID-19.”

When states stockpiling these drugs find out that certain medicines are running out, some of the states “are buying their drugs surreptitiously,” she noted.

In one of her concluding statements, Lain asserted, “Lethal injection has brought untold attention to the death penalty. It has exposed the ugly underbelly of the death penalty, and it has brought new allies into the anti-death penalty fight.”

This article originally appeared on Oakridger: How lethal injection problems could end the death penalty