A shortage of deadly drugs has led states to try out new methods that have ended in botched executions across the United States, opening up legal battles for more humane deaths.

“When you see someone gasping for breath, the one thing you want to do is reach out and help,” said Father Lawrence Hummer, a Catholic priest.

What Hummer witnessed was not a stranger choking, but the state of Ohio killing Dennis McGuire.

On January 14, 2014, Hummer attended the execution of McGuire, an Ohio death row inmate who received a combination of drugs including midazolam, a drug that has been linked to a string of botched executions in prisons across the United States. Experts believe the drug fails to render a prisoner unconscious before the injection of other deadly chemicals that paralyse them and stop their hearts.

Although Hummer was just a few feet away in the observation room, he couldn’t help McGuire.

“I wanted out of there in the worst way possible. It made my skin crawl,” Hummer said.

Hummer had been McGuire’s priest at the Southern Ohio Correctional Facility in Chillicothe, and had heard McGuire confess to, and ask for, forgiveness for the 1989 murder of a pregnant woman that put him on death row. Hummer was there with McGuire’s family.

“Once you’ve been through a trauma like that, the one thing you want to do is try to forget it,” Hummer said, remembering watching McGuire struggle for breath for half an hour. “It is being trapped in a small room, in this case with his daughter, son and daughter-in-law, whom I was there with by his request to offer them comfort and consolation. But there was nobody there for me.”

An Uncertain Future

The US is at a crossroads when it comes to capital punishment. The American public’s support for the practise is falling, as a nationwide shortage of lethal injection drugs has led states to experiment with chemicals that slowly torture prisoners to death.

Although no prisoner has lived to describe what the process feels like, Supreme Court justice Sonia Sotomayor, after hearing testimony on the issue, said that midazolam’s inability to anaesthetise the condemned “may well be the chemical equiva­lent of being burned at the stake.”

Dennis McGuire was executed in 2014 using midazolam, which did not seem to fully sedate him. (Ohio Dept. of Corrections)

Shortages of execution drugs over the last ten years have encouraged some states to carry out executions with experimental methods, often fighting in court to keep the sources and combinations of these drugs secret. The shortages came about after European pharmaceutical companies started to refuse to sell them on moral grounds to states for the purpose of capital punishment. Some states have turned to local pharmaceutical companies, regulated at the state level, for the deadly chemicals.

The use of of the sedative midazolam has been the subject of legal challenges across the US by death row prisoners, who say it violates the Eighth Amendment of the US Constitution, which bans “cruel and unusual” punishment. Nevertheless, executions have gone ahead using the drug.

In response, lawmakers in the state of Mississippi have introduced legislation that would legalise the use of midazolam and expand other options for executioners, including the electric chair, and nitrogen asphyxiation, which has never been tried before. Another proposal to include the firing squad was struck down by a committee, but is available in Utah and Oklahoma.

In neighbouring Alabama, one death row inmate, Tommy Arthur, turned to the Supreme Court to argue that the firing squad would be more humane than death by lethal injection using midazolam. Last week, the Supreme Court declined to hear his appeal, meaning his execution can go forward.

The court also declined to hear appeals from all eight remaining inmates on Arkansas’ death row. Their executions will go forward in April, using midazolam.

Following another 2015 Supreme Court decision, in the case of Glossip v. Gross, the highest US court ruled that prisoners would need to petition states with suggestions for less painful means of execution — making it the prisoners’ responsibility to provide their own lethal drugs.

“Essentially, they are being coerced into proposing an alternative because if they don’t propose an alternative, they will be executed using the method that they consider to be torturous,” said Robert Dunham, head of the Death Penalty Information Center, a Washington DC-based legal advocacy group that takes a critical stance on the way the practise is implemented.

By limiting the options death row inmates have, Dunham said that governments carrying out the death penalty could “guarantee” prisoners would feel pain.

“That doesn’t make any sense,” Dunham said. “Legislatures have to decide what they’re going to do. Are they going to tolerate botched lethal injection executions? Are they going to go through anonymous pharmacies or illegally smuggle drugs into the US?”

In one case, on April 29, 2014, Dunham said, Oklahoma used a chemical called potassium acetate to end the life of one prisoner. His last words were: “My body is on fire”.

In that case, Oklahoma also used midazolam in an apparently failed attempt to sedate that prisoner, Charles Warner.

But an Oklahoma prosecutor, Rex Duncan, dismissed Warner’s description of his own death, the Associated Press reported.

The killing drug in Warner’s case is also used to strip ice off airplanes.

“I think what you witnessed is predictable, especially if it could be helpful to the guys behind him,”  Duncan reportedly told journalists present, referring to other death row inmates awaiting execution.

Fears of the Condemned

Hearing of the suffering of other inmates as the death days draw closer, the condemned prisoners fear of a slow, torturous death grows. What worries them the most is that because of the paralysing agent, the second drug injected as part of the three drug combination, they won’t be able to tell anyone that they are suffering.

“It’s not only them, but also their family and friends who love them, who are very concerned and in terror about the notion that they will be unable to communicate that they are feeling serious pain that they are being tortured to death,” said James Craig, an attorney with the Roderick & Solange MacArthur Justice Center, based in New Orleans. He is representing two death row inmates in Mississippi who are seeking another drug to be used in their execution: pentobarbital.

Craig said pentobarbital presents a potentially more humane form of lethal injection. It’s also a drug that veterinarians employ to euthanise animals. A heavy single dose of the drug kills the prisoner, without using a three drug combination that has failed repeatedly to quickly end human life. Why states are reluctant to switch to pentobarbital is unclear, Craig said, but he can make an educated guess.

“They intend to inflict pain,” Craig said. “They are committed to their indifference to the substantial risk of torture in the manner in which they are taking executions.”

Georgia, Texas and Missouri carried out 17 of the 20 executions that took place in the United States in 2016. For these executions pentobarbital was used. But they have refused to release where they got the drug or how they used it. Craig has filed motions to seek more information about where the states got the drugs.

The confusion over how and where to get lethal injection drugs has led to unprecedented moves by other states. In Arizona, a new bill proposes to have inmates provide their own lethal injection drugs.

“I find that really the worst,” said Deborah Denno, a law professor at Fordham University in New York City who has been studying the death penalty for more than two decades.

“I don’t know what they’re going to do with that. I don’t know how that comes close to something that we’ve ever done before. That’s basically having an inmate conduct their own execution,” Denno explained.

“Executions are supposed to be conducted by the government. The idea that an inmate would bring their own drugs is abdicating the state’s considerable responsibility.”

Capital Punishment Favourability Declines 

Public opinion in the US regarding the death penalty has shifted over the decades, as genetic evidence successfully clears more inmates and raises questions about how many innocent people capital punishment kills. Falling violent crime rates and the clear racial disparities in the application of capital punishment have also contributed to the decline.

In 2016, a Pew poll found less support for the death penalty for convicted murderers than at any time since the 1970s, with 49 percent of people in favour. The study also found a sharp drop of seven percentage points between 2016 and 2015.

“Public support for capital punishment peaked in the mid-1990s, when eight-in-ten Americans [80 percent in 1994] favored the death penalty and fewer than two-in-ten were opposed [16 percent]. Opposition to the death penalty is now the highest it has been since 1972,” Pew reported.

Citing concerns about humane punishment, the Supreme Court in 1972 imposed a moratorium on the death penalty, which held until 1976. Since then, more than 1,300 people have been put to death by states.

When first used to execute a prisoner in 1982, lethal injection was hailed as a more humane way of killing death row prisoners, and that reputation has stuck in the minds of voters.

“The American public thinks that lethal injection is not cruel and unusual, but it thinks that every other method is,” Dunham explained, citing a February 2015 YouGov poll.  “The execution method of choice that is favoured by the American public is increasingly unavailable. And all the other methods are considered barbaric.”

States where the death penalty is still in force and states where it has been repealed. (Death Penalty Information Center)

Other options available for executions can also cause grotesque deaths. The electric chair, invented to be more humane, has a history of setting prisoners on fire. Gas chambers can also end in long, lingering deaths. Botched hangings wind up as slow stranglings.

“I can understand why a prisoner would prefer firing squad,” said Deborah Denno, a law professor at Fordham University who studies the death penalty.

“Where it’s been used in Utah in modern executions it is very quick,” Denno said.

“It is a quick, certain method of execution where people are trained to use it, and anecdotal evidence as well as old experimental evidences shows it is seemingly the most humane. Certainly there is a lot of evidence for that,” Denno said, adding that its implementation would require strict protocols.

But Denno stresses that it’s impossible to be sure whether people are experiencing pain. Anyone who would could say for certain is dead.

“I always qualify that statement by saying no one knows,” she said.

The future of the death penalty in the US is uncertain, Denno said. Although public opinion has turned against its use, an attempt to repeal it in the state of California failed in a referendum last year.

“I never look into a crystal ball when it comes to execution methods,” Denno said.

“I’ve been writing on it since 1990, following execution methods. I would never have predicted this drug shortage thing. That wasn’t in anybody’s crystal ball.”

Denno said that it would have been difficult to predict the beginning of the drug shortage in 2009 just a year after the Supreme Court had affirmed the legality of the three drug combination method.

What could affect the statute in the future is the composition of the Supreme Court. President Donald Trump’s nominee for the judicial body, Neil Gorsuch, has not ruled often on the matter, but one case he did sign off on as a judge on the 10th circuit concerned the botched 2014 execution of Clayton Lockett in Oklahoma. Gorsuch agreed with that decision.

Lockett preceded Charles Warner, and was also dosed with midazolam. Lockett’s slow death reportedly involved 45 minutes of writhing on the execution stretcher, or gurney, as prison officials tried and failed to insert a needle into his groin. Blood spurted from the puncture. Lockett eventually died of a heart attack. The court ruled that the doctor involved in the execution was not liable under the Eighth Amendment.

“These allegations suggest nothing more than the sort of ‘isolated mishap,’ which ‘alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty,” Joe Heaton, a federal district judge, wrote in June 2015.

While Gorsuch did not write the opinion himself, he backed the decision.

No good death?

Dunham, Craig and Denno all oppose the death penalty for a variety of reasons. Beyond the ethical dimension, they say it does not deter crime. More than that, trying to come up with a humane way of killing a human being may be impossible.

“That is the ultimate question,” Dunham said. “And that may be a moral as opposed to physical question. Pope Francis obviously has said there is no way humane way of executing anyone anytime there is an involuntary termination of a person’s life.”

Craig said that doing away with the death penalty would be part of making the American criminal justice system more fair.

“It is not becoming us as a people as Americans,” Craig said. “And it would be a very nice day that we decide not just to eliminate the death penalty, but reorient our criminal justice system but it’s going to be a little while before get there.”

Denno said that attitudes towards the death penalty and the views of victims themselves were pushing the US away from the practise, albeit slowly.

A graph showing trends in US public opinion about the death penalty.

“You have this realisation that it’s just not working,” she said. “That said we still have a couple of states where it’s going to be really hard, such as Texas. California has the largest death row population in the country. They just voted to have the death penalty and make it quicker. It’s still so much a part of our culture.”

Denno mentioned the reaction of the victims of the 2015 mass shootings in Charleston, South Carolina as a sign of a changing tide. In June of that year, the 20-year-old white supremacist Dylann Roof shot and killed nine members of the Mother Emmanuel African Methodist Episcopal Church during a Bible-study meeting where he was welcomed before drawing handgun and opening fire in the church’s basement.

The jury was less forgiving than the congregation. In January, a federal jury found him guilty and he received a death sentence. Roof, who represented himself during the trial, and showed no repentance or remorse.

“The reason I mention this is the degree of forgiveness shown toward him from the members of the church whose congregants were killed. There weren’t victims asking for the death penalty, not them. Other people yes, but not them,” Denno said.

“This kind of emotional desire for retribution is not as sellable as it used to be,” he added, even in the face of such twisted cruelty.

Father Hummer, for his part, has a proposal he believes would end the practise. As it is now, the death penalty is shrouded in secrecy, but he says that public officials should have to do the deed themselves.

“It’s the destruction of a human being,” he said. “I have said often that my solution is to make the governor of the state go be the executioner, and see how fast it is abolished.”

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