Charles Warner (left) and Clayton Lockett
Last Wednesday, Justice Steven Taylor issued a ruling in the Oklahoma Supreme Court against two men awaiting lethal injection on death row. Charles Warner and Clayton Lockett had previously had a stay of execution, arguing that they were entitled to know what drugs would be used to kill them, and where they had come from – so this was a pretty important test case, since Oklahoma officials refuse to make these details public.
Justice Taylor overturned the stay of execution, finding their arguments “frivolous and not grounded in the law". He added: "I hope that this case ends any thought of future journeys down this path that has led this court to this day."
Six days later, Clayton Lockett was led into the execution chamber at the Oklahoma State Penitentiary, lying under a white blanket. His executioners, struggling to source the drugs they wanted to use, injected him with an untested sequence of first midazolam, then vecuronium bromide and finally potassium chloride. The midazolam – the first drug injected – was supposed to knock Lockett out, allowing him a peaceful death, but journalists from the Guardian watched as he, “struggled violently, groaned and writhed, lifting his shoulders and head from the gurney”.
Lockett’s attorney, Dean Sanderford, told CNN that “the convulsing got worse, it looked like his whole upper body was trying to lift off the gurney". After several minutes, “an official in the execution room… lowered the blinds so viewers could no longer witness the process”. The execution was called off after around a quarter of an hour. Lockett’s body battled on for 43 minutes until he died of a heart attack.
In the ruling that helped turn Oklahoma's Department of Corrections into a global embarrassment, Justice Taylor had the following to say: "The plaintiffs have no more right to the information they requested than if they were being executed in the electric chair, they would have no right to know whether OG&E or PSO [two state energy companies] were providing the electricity; if they were being hanged, they would have no right to know whether it be cotton or nylon rope; or if they were being executed by firing squad, they would have no right to know whether it be by Winchester or Remington ammunition."
There are two big problems with that line. Firstly, drugs aren’t like bullets. Bullets are manufactured for a purpose, and that purpose is to kill people – something they happen to be very good at. That’s not the case with these drugs. Midazolam is a sedative designed to help people with seizures, vecuronium bromide is a muscle relaxant given to patients on life support and potassium chloride is used in heart surgery to stop the heart beating while surgeons operate. The people who made them never intended for them to be used in executions, and in many cases have demanded that people stop using them.
The second problem is that this isn’t just about the convicted murderers on death row, who aren’t exactly the most sympathetic characters. Clayton Lockett brutally murdered Stephanie Neiman in 1999 when she tried to stop him stealing her truck. He used duct tape to bind and silence her, driving her out into the countryside, digging a shallow grave while she watched and then shooting her with a shotgun. The first shot misfired, so he fixed his gun as she pleaded for her life and then shot her again, ordering an accomplice to bury her. A man who tortured a young woman during a botched shooting was later tortured in a botched execution – it’s hard not to see some dark karma in that.
But this isn't about Lockett, it's about the public and their government. People deserve to know how executions are going to be carried out, drug manufacturers deserve to know whether their products are being misused against their wishes and prison officials should be accountable for the mistakes they make. Government executions are a barbaric, medieval practice. They demean the states and nations that still carry them out by reducing them to the same level as the murderers they want to punish. But if they are going to do it, then they should at least do it professionally, humanely and transparently.
Oklahoma State Penitentiary (Photo via)
Unfortunately, the exact opposite is happening. The 32 states that still have the death penalty have been furiously resisting any attempts by the public to find out where their drugs come from. Why? Because officials are finding it harder and harder to get hold of the drugs they need through legitimate channels, and if supplies dry up completely then the whole capital punishment system could be under threat. States would have to move to less "acceptable" methods, like gas chambers or firing squads, creating more public opposition at a time when support for the death penalty is already lower than it has been for 40 years.
The EU prohibits the export of products used for “capital punishment, torture or other cruel, inhuman or degrading treatment or punishment”, a very deliberate move that puts the United States in roughly the same position as some nefarious dictator’s regime trying to source weapons on the black market. Sure, other companies could step in, but who wants to be the vaccine-manufacturer selling lethal injections to prisons? Nobody.
The trouble is, the US drug market is so badly regulated that it’s next to impossible to stop prisons using your product. Hospira, a drug manufacturer based in Illinois, were embarrassed in February when leaked documents showed that batches of midazolam they made were being used to execute prisoners in Ohio. The batches had found their way to a distributor in San Francisco, who then sold them on to Ohio, where they were used in another execution-gone-worse – the 26-minute death of Dennis McGuire in January. Louisiana and Florida use the same drug, but neither will say where they get it.
I spoke to Hospira, who repeated previous statements that “we have always publicly objected to the use of any of our products in capital punishment”. They declined to answer any questions about how companies could actually stop prisons using their products. They declined to answer whether they’d had any contact with prison authorities in question, or to comment on any response back from them. They declined to comment on whether or not their drugs might still be being used in executions, and they declined to answer whether the issue of drug misuse had come up in other areas beyond executions.
The lethal injection room at San Quentin State Prison, California (Photo via)
In fact, America’s grey market in drugs goes way beyond executions. A report by Congressman Elijah Cummings last year found that vast quantities of drugs leak from manufacturers and distributors. "Instead of dispensing the drugs in accordance with their professional duties, state laws and the expectations of their trading partners," it reads, "these pharmacies resold the drugs to grey market wholesalers.” Many pharmacies were found to be little more than purchasing fronts for sophisticated grey market operations.
Sometimes entire inventories were sold on to grey market operations, who stockpiled drugs in order to raise their prices, gouging money out of the US health system. In one case, described by Regulatory Focus magazine, “a $7 (£4) vial of [chemotherapy drug] fluorouracil originally sold by McKesson to a pharmacy would go on to be repurchased five additional times before finally reaching a California medical centre, which purchased the same vial for $600 (£355) – a markup of 8,471 percent”.
And since nobody at the end of the chain has any idea about how well the drugs were kept or looked after, the quality of the product that ends up in hospitals is questionable at best.
The same system that allows unregulated companies to screw vast amounts of cash out of the US health system – and unscrupulous doctors to hand out prescription drugs like candy – also enables states to continue doling out vengeance through prison executions. Drugs disappear from the shelves of pharmacies and can end up anywhere, from back alley stockrooms, to state prisons, to the hands of Michael Jackson’s doctor.
Congressman Cummings launched a bill to stop all this last year – “A bill to prohibit wholesalers from purchasing prescription drugs from pharmacies, and to enhance information and transparency regarding drug wholesalers engaged in interstate commerce.” It’s a bill that could have far-reaching consequences for the health of Americans, the costs of healthcare, the abuse of prescription drugs and the future of capital punishment. And it’s a bill supported by virtually nobody in Congress, because anything that threatens private profits and prevents backwards legislators from executing citizens just wouldn’t be very American.
More stories about the death penalty: