Olivarius: Suffocating the death penalty

Culture Quotient

The international community is currently sanctioning a country for violating human rights. Sanctions are nothing new. What’s new is that the country being sanctioned is the United States.

The international community has banned the export of a dangerous and deadly substance to the U.S. It’s not cocaine or heroin, but sodium thiopental, a strong anesthetic normally used in surgery. But in 34 states, the substance is also used as the first shot in a tripartite “execution cocktail” — it anesthetizes a prisoner before they are injected with other drugs that stop their breathing and then their heart. Supplies of the drug have run essentially dry in the U.S. this year, as the only Food and Drug Administration-approved company to manufacture it in the nation, Illinois-based Hospira Inc., stopped production in January.

In a somewhat paradoxical saga, many states have looked overseas for the solution. They’ve had little luck: Italy makes it, but authorities there demanded assurances that it wouldn’t be used for capital punishment; Britain, Germany and India have banned exports of the drug to the U.S. The 139 countries that see capital punishment as a violation of human rights have, unsurprisingly, not supported our efforts to continue violating those same rights.

So this is a real pickle. How can the U.S. continue to execute people if it doesn’t have access to the only lethal drugs sanctioned by its own laws? Through loopholes, deviousness and ethical quagmire.

In January, the FDA announced that it would permit prison officials to import sodium thiopental from abroad (if they could get it), but it also said it would not vouch for the safety and purity of said thiopental. The FDA essentially said, “Do whatever you want, but we want nothing to do with it.”

Six inmates on death row from Arizona, California and Tennessee caught onto this absurdity in February and filed suit against the FDA in federal court. They say there is no promise that the drugs produced by foreign countries produce the same “painless” death our domestic, regulated versions do. Foreign thiopental might even cause a torturous death constituting “cruel and unusual punishment” banned under the Eighth Amendment.

The Drug Enforcement Administration seemed to follow the inmates’ logic this week and seized Tennessee’s and Kentucky’s supplies of sodium thiopental. According to The Associate Press, Kentucky obtained its supply of the drug, enough to carry out three executions, from CorrectHealth, a private Georgia correctional health company, at a cost of $2,262.83 for 18 grams. But it is unclear how CorrectHealth imported it, or where from. Last month, the DEA seized Georgia’s thiopental supply due to similar concerns.

All of this murkiness has caused some states to simply stop using sodium thiopental — but not capital punishment. Mississippi, Texas, Oklahoma and Ohio have simply substituted sodium thiopental with pentobarbital, a sedative often used to euthanize animals.

But this switch is not like switching from a PC to a Mac. The sole American manufacturer of the pentobarbital, Lundbeck Inc., opposes its use in human executions. And documents made public in a pending Texas lawsuit filed by two death row inmates earlier this year show that Rick Thaler, director of the Texas Department of Criminal Justice, did not consult a single doctor or medical professional before he made the decision to switch drugs. Instead, he merely read an article online from Dr. Mark Dershwitz, one of the anesthesiologists Oklahoma hired to defend its use of pentobarbital in a court challenge.

Indeed, a report released last weekend by the ACLU, the ACLU of Texas and the Center for International Human Rights at Northwestern Law School concluded, “It is not exaggeration to say that Texas regulates the euthanasia of reptiles more strictly than the execution of human beings.”

This is the gross and corrupt nature of our capital punishment system — fraught with inequities, backdoor deals and opacity. States are denying prisoners their constitutional rights by switching drugs without any medical consultation (and against the express wishes of the company that produces it). Or they obtain drugs in legally murky ways from oversees so they can keep their executions on schedule.

Maybe Texas — which executes more prisoners than any other state, and has definitely executed at least one innocent man, Cameron Todd Willingham in 2004 — can afford to slow its pace of executions, even if it means giving its citizens more justice than a gecko.

Kathryn Olivarius is a senior in Branford College. Her column runs on alternate Fridays.

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