America's death penalty debate gets a lethal injection: Neil Macdonald

New questions about the effectiveness and propriety of lethal injection drugs have death penalty states considering a return to firing squads and the electric chair. The debate, Neil Macdonald explains, is both Kafkaesque and humanely American.

Shortage of lethal injection drugs has U.S. states considering firing squads, electric chair

The gurney used to restrain condemned prisoners during the lethal injection process at the Texas death house in Huntsville. (Associated Press)

Dennis McGuire, to the horror of witnesses and the unease of prison officials, died snorting and gasping on Jan. 16.

It took him 25 nasty minutes to expire; not at all the "dignified" death predicted by Ohio's rather ironically titled director of correction and rehabilitation, Gary Mohr.

Prison guards later said that McGuire, whose crime was stabbing a pregnant woman to death, was faking all the distress in order to embarrass the prison system.

How he managed to keep up the charade for nearly half an hour with a massive dose of poison flowing into his veins, they did not explain.

Whatever, it was ugly. You'd think American authorities, who've been executing people almost non-stop since the days of the 13 colonies, would be pretty good at it by now. 

But, even after thousands of hangings, gassings, electrocutions, injections and shootings, they're still, evidently, working on their technique.

Not that it's terribly difficult to kill someone. The French used the super-efficient guillotine right up until 1977, just before France abolished the death penalty.

The firing squad works pretty well, too. So does a bullet in the back of the head.

America, though, is America, with its unique mixture of fundamentalist religiosity and legal humanity.

Its courts have basically held that that while killing by the state is appropriate, it shouldn't be messy. And that has left prisons with the rather challenging job of ending human life in an orderly fashion.

Public sensibilities

It was the U.S. that pioneered lethal injection (well, actually, Hitler's Germany did, but I think Godwin's Law is right about Nazi analogies ending reasonable discussion, so let's leave that fact aside).

But right from the start, when Oklahoma state medical examiner Jay Chapman first proposed lethal injection in 1977, it was clearly more about public sensibility than mercy for the condemned.

Death-penalty opponent Elaine Engelgau holds a sign during a protest outside the South Dakota Penitentiary in Sioux Falls, S.D. The debate has sprung up again because a shortage of lethal injection drugs has caused some states to experiment with different methods. (Associated Press)

"They did it because it would be more palatable," says Richard Dieter of the Death Penalty Information Centre in Washington, D.C. "No court forced them to do it."

Until 1977, executions were sometimes downright gory, offending the assembled witnesses and provoking unfavorable stories in the media.

In the process of dying, prisoners would from time to time foam at the mouth or convulse violently in gas chambers; or burst into flames in the electric chair.

This was upsetting to politicians, who understand that while the American public generally approves of executions, it doesn't want to hear the horrifying details.

The three-drug cocktail

It's unclear how Oklahoma arrived at its cocktail of three drugs, administered sequentially, but every death penalty state in America eagerly adopted the technique.

Sodium thiopental renders the prisoner unconscious. Pancuronium bromide then paralyzes the body, and finally, potassium chloride stops the heart. (Bizarrely, technicians wipe the prisoner's arm with alcohol first, to prevent infection from the needle).

Over the course of nearly a thousand executions with that cocktail, though, disturbing things still happened, like prisoners heaving and gasping, the phenomenon of so-called "air hunger."

Some experts declared that prisoners were actually suffocating while paralyzed and conscious.

So the European manufacturers of these drugs, operating from a place where the death penalty is seen as abhorrent, began imposing export restrictions, or even refusing to sell to the U.S.

Death penalty states were forced to seek alternatives, like bringing in these drugs from India.

But the federal government put a stop to that, seizing shipments it deemed "illegally imported." (U.S. authorities insist all imported drugs, even those used to kill people, be approved by the Food and Drug Administration).

States eventually began turning to what they could find, or even manufacture, here.

Some are now using a "compounding pharmacy," which makes the barbiturate pentobarbital from scratch. But the pharmacy, in Oklahoma, is not licensed to export to prisons in other states. (Again, you wouldn't want anyone killed by a drug that had illegally crossed a state line.)

Finally, states simply began refusing to divulge what drugs they were using for executions, in the process creating a Kafkaesque legal conundrum: prisoners have the right to propose alternate drug cocktails to prevent undue suffering, but they are not allowed to know what drugs the state intends to use on them in the first place.

A return to firing squads?

Somewhat logically, frustrated Republican legislators in death penalty states are now suggesting a return to firing squads or (in Virginia) the electric chair. After all, they say, there is no constitutional right here to a painless death.

And they are probably right. The current debate over lethal injections — Louisiana became the latest state on Monday to postpone an execution while lawyers debated chemical formulations — is really just a legal sideshow that distracts from the main issue: the possibility of executing an innocent person.

"It's almost certainly happened," says Dieter. Since 1973, he says, 143 people have been exonerated and released from death row, 18 of them on DNA evidence.

That's 143 innocent people who would have been put to death had it not been for the dogged legal work of death penalty opponents. Their research is clearly having a larger effect.

Six states have banned executions in the past six years. Eighteen states, plus the District of Columbia, now refuse to execute anyone.

The man who started the current debate: Dennis McGuire, a condemned Ohio killer faced a never-tried lethal injection method when he was put to death last month for the 1989 rape and murder of Joy Stewart. It took him 25 minutes to die. (Associated Press)

At the same time, juries have become increasingly reluctant to hand down death sentences, which have declined from a peak of 300 or so 14 years ago to 80 last year.

Actual executions have declined from a high of 98 in 1999 to 39 last year.

Eventually, says Dieter, American courts will probably put an end to the death penalty altogether: "It has to do with … whether it is outside our standards of decency. It's an evolving standard of national consensus."

That evolving standard would undoubtedly change dramatically if, as is probably inevitable, someone manages to prove beyond a doubt that an innocent person has been executed.

Death penalty proponents would be reduced to arguing that while human error is inevitable, it's no reason to abandon executions.

At that moment, though, America would have to face the barbaric reality of a practice it shares not with most other democracies, but with the likes of China, Iran and Saudi Arabia.


Neil Macdonald is a former foreign correspondent and columnist for CBC News who has also worked in newspapers. He speaks English and French fluently, as well as some Arabic.