Paying the Price of the Lethal Injection Business

One year ago, on Oct. 28,  2021, John Marion Grant was put to death by lethal injection; specifically, a three-drug combination of a barbiturate to anesthetize (midazolam), curare to paralyze (vecuronium bromide), and potassium chloride to induce cardiac arrest. The constituents of the three-drug cocktail are telling: the midazolam is meant to put the prisoner to sleep, and the paralytic is only used to shield the witnesses from seeing what happens when the victim is injected with the third drug, a profoundly painful poison. Yet, a “botched” execution may occur where an individual drug is improperly compounded or where the needle is not inserted properly in a vein by an incompetent technician.

Despite claims of an execution “without complication” by the Department of Corrections spokesman Justin Wolf, witnesses and Grant’s autopsy painted a painful picture of his last moments. Once strapped to the gurney, Grant was injected with midazolam. This caused him to convulse and vomit. As recounted by Dan Snyder, an Oklahoma City Fox anchor, Grant was shaking, “so much so that his entire upper back repeatedly lifted off the gurney.” After 12 minutes, Grant finally appeared to lose consciousness; he was injected with the remaining two drugs and was declared dead at 4:21 p.m. Later, an autopsy confirmed the suspicions of a torturous death, specifically due to flash pulmonary edema and intramuscular hemorrhaging. According to experts, the former is characterized by the increase in the weight of lungs due to “a swift build-up of fluid that creates a feeling of suffocation and drowning that experts have likened to waterboarding.” As Dr. Mark Edgar from Emory University explained, Grant was likely “aware of sensations of drowning, asphyxia, and terror” in his last moments.

The veil of secrecy prevents transparency in how taxpayer money is used and whether the promise of a humane execution is upheld.

Grant’s execution dramatically differs from the perception of death by lethal injection that is promoted by its advocates. This is predicated on a flawed promise that there is a more humane alternative to the ultimate punishment. Previous methods of hanging, electrocution, or death by firing squad appeared excessively violent by today’s “civilized” standards. Most states turned to lethal injection as a supposedly humane system; between 1977 and 2018, nearly 90% of executions occurred using this method.

Death is a gruesome business, but it certainly is good business for the compound pharmaceutical companies making hay from the lethal injection drug crisis facing states that still have the death penalty. Compound pharmaceutical companies are exploiting the desperation of “executing states” by charging exorbitant sums for vials that may cause a nightmarish death. Such companies produce non-Food and Drug Administration (FDA)-approved versions of drugs, which evidence suggests may increase the risk of botched and painful executions. Small compounding pharmacies have profited by filling a void created when Big Pharma hurried out of the execution market. However, the veil of secrecy shielding this industry is slowly lifting.

THE FALSE PROMISE OF A HUMANE EXECUTION 

It has gradually became clear that lethal injection had the highest rate of botched executions compared to all other methods. Even some strong advocates of the death penalty have issues with the deceit of lethal injection. Former Ninth Circuit Appeals Court Judge Alex Kozinski, a Reagan appointee, said in an interview with 60 Minutes, “[…] the use of lethal injections is the way of lying to ourselves, to make it look like executions are peaceful, are benign, are sort of like going to sleep, and they’re not. They’re brutal things.”

The use of compound pharmaceutical drugs has intensified this brutality, as it seemingly contributes to the pain. For example, between 2018 and 2019, 7 out of 22 Texan inmates who were executed using the compounded drug pentobarbital experienced excruciating pain, specifically “a burning sensation in their veins after the drug was injected.” As explained by US Supreme Court Justice Sonia Sotomayor, “[e]xecution absent an adequate sedative […] produces a nightmarish death: The condemned prisoner is conscious but entirely paralyzed, unable to move or scream his agony, as he suffers what may well be the chemical equivalent of being burned at the stake.”

When state officials in Tennessee discovered that their compounded lethal drugs had not undergone adequate testing for bacterial endotoxins, they halted all executions and currently await the results of an examination into execution protocols. Arizona sought to expedite the execution of two death-row prisoners in 2021 in order to utilize pentobarbital that was worth $1.5 million prior to its expiration date. Prisoners had objected to a misrepresentation of the shelf-life of the drug, citing experts who had stressed that after just 45 days, its potency was much reduced. The Arizona Supreme Court ruled that the state was required to conduct “specialized testing to determine a beyond-use date for compounded doses of the drug” before the executions could be scheduled.

Other states have returned to alternative execution methods due to the problems sourcing lethal drugs. Methods once seen as barbaric compared to lethal injection have seen a comeback, most notably the electric chair. In 2021, South Carolina became the only state to make electrocution the default method of execution if a prisoner did not make a choice. The state had seen a decade-long pause in executions due to problems sourcing lethal drugs and re-introduced both the firing squad and the electric chair. But a September 2022 court ruling has now outlawed these methods as unconstitutional, throwing the state’s ability to carry out executions into doubt.

FILLING THE MARKET VOID

The use of compound drugs is a recent phenomenon. As of around 2010, US Big Pharma refused to manufacture vials of execution drugs due to bad business and bad PR: they received just cents for each vial, and the image of executions did not fit with their life-saving image. While the executing states sought foreign drugs, this became increasingly difficult, with the sources appearing to be disreputable.

An early example was Dream Pharma, Ltd., which was essentially a small room at the back of a driving school in west London. Arizona struggled to “acquire enough [drugs] in the US” in order to resume its executions. Disregarding the concerns expressed by a senior pharmacist consultant who questioned the source of the drugs and their lack of FDA approval, Arizona went ahead and purchased its execution drugs anyway. An invoice from 2010 issued by Dream Pharma reflects 150 vials of sodium thiopental, 180 vials of potassium chloride, and 450 vials of pancuronium bromide at a total cost of £4,528,25.

A later foray by Arizona shows how the increasing barriers imposed by Big Pharma and foreign countries raised the price. In October 2020, The Guardian revealed that Arizona purchased 1,000 vials of barbiturate pentobarbital from an undisclosed company at $1,500 each, totaling $1.5 million. As explained by Assistant Federal Defender Dale Baich in April 2020, “[f]or the State to spend $1.5 million on execution drugs is even more disturbing given recent reports about the budget crisis at the Department of Corrections” and “[s]urely there is a better use for this money than carrying out executions.”

States were left with two options: to turn to domestic US compounding pharmacies or look further afield to other countries. The lack of regulation of compound drugs in the United States did not translate into a discount. Indeed, as Prashant Yadav from Harvard medical school explained, “[t]hese drugs are being traded in a zone of unclear regulatory apparatus, and so they typically charge a higher price.”

A lack of transparency and oversight breeds unaccountability and leaves the door open for states to breach laws and deceive drug suppliers and manufacturers without public scrutiny.

They were no more successful when attempting to source execution drugs from overseas. Nebraska was willing to pay a total of $54,400 for a minimum order of 1,000 vials to a one-man operation based in India called Harris Pharma, even if there were only 10 men awaiting their execution at that time. According to Buzzfeed News, the price for the drugs, specifically sodium thiopental, was “seven times more than what the drug typically costs.” Nebraska sought to repeal its death penalty shortly afterward, so the vials were never used. And not for the first time.

The same investigation by Buzzfeed found that in 2011, the Drug Enforcement Administration seized 500 vials of sodium thiopental, shipped from India to Nebraska, due to lack of an import license. Other states, including Arizona and Texas, have similarly found their illegal drug imports impounded by the Federal Drug Administration. So desperate are some states to cling to their right to kill and condemn death row prisoners to a torturous end that they prefer to waste taxpayers’ money on absurdly overpriced drugs than to repeal the death penalty and impose a life sentence.

Death penalty advocates often cite the costs of keeping prisoners locked up for a lifetime as a justification for their support of execution. In fact, the costs associated with a capital case that includes longer trials, more appeals, and lengthy solitary confinement in a specialist facility with greater security far outstrip the cost of long prison sentences. For example, a study carried out by Texas Defense Law in 2015 found that the cost of a death penalty case was $2.6 million more than the cost of Life Without Parole in Texas.

THE LAWS THAT SHIELD PHARMACEUTICAL COMPANIES 

Arizona and Nebraska were not alone in their dodgy lethal drug deals, as essentially every executing state followed suit. However, widespread does not mean widely known: states increasingly adopted rules to shield the state and its execution process from public scrutiny. Indeed, as explained in the Report to the House of Delegates of the American Bar Association on Lethal Injection Secrecy Resolution, “[w]hen jurisdictions are permitted to operate in secrecy, the courts, legislatures, and the public cannot provide critical oversight to guard against the use of risky and experimental drug protocols.” In essence, this veil of secrecy prevents transparency in how taxpayer money is used and whether the promise of a humane execution is upheld.

To better illustrate how far states are willing to go in order to obtain these drugs without public oversight, Arizona’s execution drugs, worth $1.5 million, were shipped in “[u]nmarked jars and boxes” with the location having to yet “be determined.” However, states have also taken legislative steps to ensure that little information regarding the execution process is made available to the public. Despite claims that the laws are imposed to protect businesses from “all the demonstrators that will appear at their door,” the secrecy appears to be a pretext for hiding improper conduct. An example of such law includes Arkansas Code Ann. §5-4-617 (2015) – Method of execution, which conceals information of “entities and persons who compound test, sell, or supply the drug or drugs.” Again, Arkansas is not alone when it comes to this, as more than 10 states have imposed similar provisions.

The problematic nature of such laws was summed up by the Death Penalty Information Centre, stating that “Secrecy increases the risk of problems. It results in more botched and potentially problematic executions.” A lack of transparency and oversight breeds unaccountability and leaves the door open for states to breach laws and deceive drug suppliers and manufacturers without public scrutiny.

WHAT THE AMERICAN PUBLIC SHOULD KNOW

Despite once being promoted as a humane alternative to other forms of executions, lethal injection has slowly been recognized as just as bad, if not worse, than the methods it was brought in to replace: painful, expensive, and immoral. Whether an executioner has a conscience at all may be in question, but certainly, he appears to be unfazed by his contribution to the cruelest of punishments.

However, while state officials appear unfazed, the question remains whether the public is aware of their state’s complicity in the opaque business of “lawful” torture. If they are, should they not be outraged? At the end of the day, they are left with a hefty bill for drugs that are either left unused or otherwise cause a painful death. But the people who really pay are the prisoners who are put to death in an inhumane and savage way. With no oversight of the execution process, Grant’s tortuous death is likely to become increasingly common.

Kinga Nastal is a final-year law student at the University of Bristol, Human Rights Law Clinic Researcher, and intern for the non-profit 3DC.

Pauline Canham is a freelance writer focused on human rights, the policies of the global war on terror, drones, and autonomous weapons. Previously, she spent 20 years in the broadcasting sector, working on projects for the BBC and Al Jazeera.

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Sahar Khan