Old Sparky

by Anthony Galvin

  15

  THE RISE OF LETHAL INJECTION

  When the moratorium on executions came in 1967, the vast majority of death penalty states were either exclusively using the electric chair or using it in conjunction with a second execution method. In close to a century of use it had become the most popular execution method in the United States. But despite its popularity, it had not advanced. The procedure and equipment were still the same as those used during the Kemmler execution that began it all.

  Every other electronic device had progressed with the times. Radios had replaced valves with transistors; the wax cylinders of the phonograph had been replaced with the magnetic strips of cassettes. The world had moved on. But not Old Sparky.

  Once seen as a symbol of modern progress, by the seventies it was a relic of the barbarous past, suitable for exhibit in horror shows and wax museums. So when the moratorium was lifted nine years later, in 1976, it gave many states a chance to reassess how they would bring about the deaths of convicted murderers. The chief objection to electrocution was that it was most certainly not humane nor painless. There had been too many instances of prisoners surviving the first jolt and still being conscious. Several had been in obvious pain and some had even caught fire. Even when it went smoothly, it was a terrible sight for witnesses to behold. Could technology once more come to the rescue?

  One idea had been around almost as long as the electric chair itself. Lethal injection had first been proposed back in 1888, the year the New York Commission had opted for electrocution. The idea came from Dr. Julius Mount Bleyer, a New York physician, in a sixteen-page pamphlet entitled “Scientific Methods of Capital Punishment.” He believed that the injection of massive overdoses of opiates would result in unconsciousness, followed swiftly by death. It would be cheaper and more humane than hanging. His idea was ignored.

  But in Nazi Germany the idea was taken up. As the Nazis experimented with ways of ridding the Master Race of the impurities of those “lives unworthy of life,” they experimented with the idea. Hitler authorized certain doctors to find ways of ending the lives of those suffering from incurable genetic conditions or mental problems. During the two years that the Action T4 Program ran, 70,273 people were put to death in innovative ways. It began in 1939 with the secret killing of children born with birth defects. The method used was often an injection of phenol, an anesthetic. Soon the practice spread to Jewish children and juvenile delinquents. But when the program moved to the elimination of adults, shooting or the gas chamber were the preferred methods.

  After the war, Britain revisited the question of the death penalty. A Royal Commission on Capital Punishment met for four years between 1949 and 1953. Despite the fact that former Prime Minister Winston Churchill had previously suggested building an electric chair in Trafalgar Square, London, to execute Hitler, the commission dismissed electrocution, saying, “Neither electrocution nor the gas chamber has, on balance, any advantage over hanging.”

  They recommended that if hanging were to be replaced, only two alternatives were possible. Lethal gas, applied through a mask, or lethal injection. Both methods were rejected because the commission felt that the prisoner would struggle, making them difficult to administer.

  “Furthermore, the British Medical Association vigorously protested against any member performing this service or instructing lay persons in the techniques,” they noted. Britain continued to use hanging until the death penalty itself was abolished in 1965.

  When the moratorium on executions was lifted in 1976, the United States had a chance to consider alternatives to electrocution. There had been nearly a decade with no executions and the public had lost the stomach for Old Sparky. Utah saw the first post-Furman execution, when Gary Gilmore opted for firing squad. Utah was one of the few states that had not switched to the electric chair. For many years they allowed the choice of hanging, beheading, or firing squad. No one opted for beheading, so it was removed from the books. Most went for firing squad. In 1955 they had voted to allow electrocution, but they never built a chair so it never became an option.

  The next execution after Gilmore did not take place until 1979, when small-time crook John Spenkelink was executed in Florida for killing a fellow crook. They used the electric chair but already moves were afoot to replace Old Sparky in several jurisdictions.

  In 1977, Oklahoma had to make a decision on how they would carry out future executions. After a decade lying idle, their electric chair was no longer in safe working order, so they had a stark choice: spend money renovating it or spend that money coming up with a better execution method. They decided on the latter. State Senator Bill Dawson put out a call for ideas, and Dr. Stanley Deutsch, the chair of the Anesthesiology Department of Oklahoma University Medical School, responded. He said that drugs could be administered through an intravenous drip that would cause a quick and painless death. That year Oklahoma legislated to allow the new method be used. It was called the Chapman Protocol, after State Medical Examiner Jay Chapman: “An intravenous saline drip shall be started in the prisoner’s arm, into which shall be introduced a lethal injection consisting of an ultra short-acting barbiturate in combination with a chemical paralytic.”

  The same year, Texas introduced similar legislation to replace their chair with lethal injection. Over the coming decades, thirty-seven of the thirty-eight states using capital punishment switched to lethal injection.

  The first convict to face the needle was Charles Brooks Jr. on December 7, 1982. He was the first man to be executed in Texas since 1964 and the first African-American to be executed anywhere following the Gregg decision which began the moratorium. He had stolen a car and shot the mechanic from the used car lot, on December 14, 1976.

  After a last meal of T-bone steak, fries, and biscuits, followed by peach cobbler and washed down by iced tea, he was strapped to the gurney and wheeled into the death chamber at Huntsville, Texas. A vein was found and the saline drip was inserted in his arm. The guards were having difficulty doing this, so the medical observer, who was only there to certify death, stepped in and inserted the needle. Then Brooks was asked if he had any last statement. He had converted to Islam in prison and he said a brief prayer. After that, the warden took over. Instead of injecting the three drugs separately, he mixed the three together. They began to react with one another, producing a gloopy mess. But he managed to inject it into the saline solution. Brooks clenched his fist, raised his head defiantly and then fell back on the gurney unconscious. It took only a few minutes, and Brooks’s death appeared smooth and peaceful.

  After a number of trials the execution procedure is now fairly standardized. The condemned is strapped onto a medical gurney and two IV drips are inserted, one in each arm. Only one is used for the execution. The second is a backup in case of mishaps. Sterilized needles are used. This might seem unnecessary; what are the chances of infection if the prisoner is going to die within minutes anyway? But it is necessary for the attendants more than for the prisoner. And on one occasion, a prisoner was hooked to the IV, with the saline solution already in his bloodstream, when a temporary stay was phoned in. The authorities had to ensure that James Autry (convicted of shooting a priest during a robbery) was in good health later, for his eventual execution.

  Once the IV is in place, the saline solution begins to feed into the veins. Then the three-drug cocktail is administered. It begins with sodium thiopental or pentobarbital, an ultra short-acting barbiturate. This is a powerful anesthetic which will render the prisoner unconscious in well under a minute. It is often used for medically induced comas. One of the side effects is a depression of respiratory activity. This alone would eventually cause death. But there are two more shots to come.

  The second injection contains pancuronium bromide, a muscle relaxant. It causes complete, fast paralysis of the muscles of the body, including the diaphragm which controls breathing. This injection would lead to death by asphyxiation within a number of minutes. If the patient was conscious, this would be a
n extremely painful and frightening death—though that would not be obvious to onlookers. The victim would struggle to breathe, fighting desperately, but unable to even flicker an eyelid. To onlookers he would just look glassy-eyed and still.

  The final drug is potassium chloride, which stops the heart, causing death by cardiac arrest.

  All three drugs on their own are fatal. The third, which causes burning of the skin, would be extremely painful if administered to a conscious patient. The prisoner is always hooked up to a heart monitor, which will let the attending physician pronounce the time of death. This usually occurs well under ten minutes.

  The IV line runs from the gurney to a room next door to the death chamber, divided by a curtain. The technicians can inject the poisons out of sight of the prisoner and monitor his progress.

  If all goes right, lethal injection is a simple and painless way of slipping into the beyond. But nothing in life is guaranteed to run according to plan. Sometimes there are difficulties finding a suitable vein. Many prisoners are drug abusers, so their veins would not be in the same condition as those of the healthier non-prison population. Veins can collapse, requiring the attending technicians to try again repeatedly. Occasionally prisoners are obese, with the veins well concealed. One execution took so long that the prisoner was unstrapped from the gurney midway through for a toilet break!

  The other problem is consciousness. Anesthesiology is a well-established branch of medicine, but even the best can get dosages wrong. In general surgery, one to two in a thousand experience some degree of anesthesia awareness. This can range from being mildly aware of sensations, to full-blown consciousness and the experience of all the pain during an operation. But because of the effects of the anesthesia, they cannot communicate that something has gone wrong.

  Autopsies of prisoners who have died by lethal injection show clearly that the amount of the first drug used is typically borderline and many would not have been deeply unconscious when the second and third drugs were administered. This means that what looks like a peaceful death from the comfort of the witness room might in fact have been a terrifying ordeal, where the prisoner died screaming on the inside. This is not a common situation, but prisoners are no different biologically than the general population, so we know it has happened on a number of occasions.

  In recent years some prisons have experimented with an even simpler system than the three-drug sequence. It began in Ohio on December 8, 2009, with the execution of rapist and murderer Kenneth Biros. After saying that he was being paroled to heaven and was going to spend his holidays with Jesus, he was injected with sodium thiopental. Nine minutes later he was pronounced dead. The powerful anesthetic had taken a little longer than the traditional cocktail. But it was used because of concerns that the earlier method could cause severe pain in a small number of cases. The one-drug protocol was identical to the way animals are put to sleep.

  Since then, thirteen states have either switched to the single drug method or announced their intentions to switch. The dose of sodium thiopental used in executions is typically 5 grams. This is more than three times the amount used for assisted suicide in countries that allow that. It is also a far higher dosage than was used in the early days of lethal injection.

  Aside from the problem of finding a suitable vein in some prisoners, lethal injection would appear to be a very efficient execution method. Of course, it is never that simple. Opponents have argued that it is not actually painless as practiced currently in the United States. The barbiturate used can wear off quickly, leading to anesthesia awareness and a very uncomfortable death. Normally sodium thiopental is used to induce unconsciousness, but a different drug is used in surgery to maintain unconsciousness. What happens if a prisoner wakes before he dies? After all, the drug is administered by a prison employee, not by a highly trained anesthetist.

  Jay Chapman, the Oklahoma Medical Examiner who introduced lethal injection, told the New York Times in 2007: “It never occurred to me when we set this up that we’d have complete idiots administering the drugs.”

  Typical of this was the execution of Angel Diaz on December 13, 2006, in Starke, Florida. The technicians punctured the veins in Diaz’s arms when inserting the intravenous catheters, so the drugs were injected into soft tissue instead of into the bloodstream. Because of this, the first drug failed to anesthetize him, and he was grimacing and moaning for the first twenty-six minutes of a procedure that should have taken less than seven. He suffered chemical burns, nearly a foot long, on both arms and was almost certainly conscious and in great pain for most of the lengthy and botched execution. He took thirty-four minutes to die. Following the public outcry, Governor Jeb Bush put a ban on all executions in Florida. The ban lasted two years.

  The problem is not so much the lethal injection procedure itself, but who is administering it. It is a medical procedure being carried out by people with no medical training or background. A research article published in the prestigious medical journal The Lancet revealed the extent of the problem. In Texas and Virginia, the two states studied, the researchers found, unsurprisingly, that the executioners had no training in anesthesia, and because the execution was controlled from a room outside the death chamber, the prisoner was not being properly monitored to guarantee that the anesthesia had taken before the second and third drugs were administered. In other words, mistakes were not just possible, they were virtually inevitable.

  Forty-nine autopsies were analyzed from a number of states, and they showed that in forty-three cases the level of thiopental in the bloodstream was less than that required for surgery. Shockingly, a massive 43 percent of executed prisoners had such low levels of the sedative in their system that they were most likely conscious during their execution. The authors of the report were led to the inescapable conclusion that a large number of executed inmates were aware and suffered extreme pain and distress during the five to ten minutes of their execution. Far from being a humane alternative to the barbarity of hanging, it was an escalation of the horror for many of those put to death.

  “Because participation of doctors in protocol design or execution is ethically prohibited, adequate anesthesia cannot be certain. Therefore, to prevent unnecessary cruelty and suffering, cessation and public review of lethal injections is warranted.”

  There is another reason why lethal injection might not be the perfect replacement for the electric chair, and that reason has nothing to do with how it is administered. It has to do with outside commercial forces and public sensibilities within the European Union.

  Sodium thiopental, the most important ingredient in lethal injection, was used for years in medical anesthesiology. But in recent years its use has declined and newer and better drugs have replaced it. There was just one supplier of the drug in the United States, an Illinois pharmaceutical company called Hospira. In 2009, they decided to move production to their plant near Milan, in Italy. But the Italian government demanded a guarantee from Hospira that the drug would not be used for executions, which are illegal in Italy and throughout most of Europe. As Hospira could not control what purchasers did with the drug, they decided the only solution was to suspend its production.

  “We cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment. Exposing our employees or facilities to liability is not a risk we are prepared to take,” said a spokesperson, Daniel Rosenberg.

  The Italian setback was swiftly followed by more problems. The United Kingdom introduced a ban on the export of sodium thiopental in December 2010 because of the European Union Torture Regulation. A year later, the European Union extended trade restrictions to prevent the export of medicinal products that could be used for executions to the United States, stating, “The Union disapproves of capital punishment in all circumstances and works towards its universal abolition.”

  As supplies ran low, states began to explore other options, including pentobarbital, a drug often used for animal euthanasi
a. Oklahoma executed John David Duty with this as part of the cocktail in 2010, and Ohio executed Johnnie Baston with this drug alone, one year later.

  In theory lethal injection provides a peaceful passage to the great beyond, and the one-drug protocol should be even gentler than the initial three-drug cocktail. How does the reality square up?

  In September 2009 officials in Ohio had to abandon the execution of Romell Broom, after struggling for two hours to find a suitable vein in his arms, legs, hands, and ankles. Five years later Dennis McGuire was executed in the same state and it took more than twenty minutes for him to die. He was gasping for air and struggling to breathe for more than ten of those minutes, as the drugs began suppressing his respiratory system.

  Even worse was the execution of Clayton Lockett in the Oklahoma State Penitentiary at McAlester on April 29, 2014. The thirty-eight-year-old was convicted of murder, rape, and kidnapping. Due to the lack of the traditional drugs, a new mixture of untried drugs was being tested on Lockett. The execution began badly. The prisoner was in such a state of terror that he had to be Tasered to get him onto the gurney. The officials struggled to insert the IV into his arm and then moved on to his groin, where they found a vein, and the procedure began as usual (aside from the Tasering, which was decidedly unusual). But there was one difference: Lockett did not pass out. He appeared to lose consciousness, and then he began to speak during the execution process, then he seemed to quiet down again. He was declared unconscious, and then he attempted to sit up, which proved the lie of that declaration. The execution lasted an agonizing forty-three minutes before Lockett was finally declared dead. The subsequent autopsy shocked the officials: they had not killed him with their new mixture. He had died of a heart attack under the stress of the execution. That definitely crossed the line into cruel and unusual punishment.