Executioners Scramble for Drugs

Sodium Thiopental was designed to be used as an anesthetic. It is also however the first drug administered in the typical cocktail of three for execution by lethal injection. 2-5grams of sodium thiopental streams into the body to induce unconsciousness, followed by 100milligrams of Pancuronium bromide which causes muscle paralysis and respiratory arrest, and finally 100 milliequivalents of potassium chloride to stop the heart.

Since the botched execution of Romell Broom in Ohio, a new one-drug method has been developed – a lethal dose of sodium thiopental. It costs Ohio $350 for the drug alone to execute someone. Washington has also elected to apply this method.

The sole American producer of Sodium Thiopental is an Illinois company called Hospira. It was designed, they say, solely for medical purposes, and they do not know how it has found its way into execution chambers. The company, who sells all three of the drugs involved in execution by lethal injection, has even come out against the death penalty. “Hospira manufactures this product because it improves or saves lives, and the company markets it solely for use as indicated on the product labeling,” Mr. Rosenberg, the company’s spokesperson, said in a statement. “The drug is not indicated for capital punishment, and Hospira does not support its use in this procedure.” Particularly interesting in light of the fact that very few hospitals use Sodium Thiopental, choosing rather to use alternative anesthetic drugs, so really the majority of the drug which is sold goes towards executions. Other uses for the drug include euthanization of animals and assisted suicide.

The FDA reported a shortage of the drug in March. Hospira acknowledged a shortage last spring, first promising fulfillment in July, then October, now pushed back to January 2011. A spokesperson with Hospira has said the issue relates to the shortage of an active ingredient/ raw material and they hope to have the product back on the market at the beginning of the New Year. There is some speculation, however, that this is all a stunt to prevent further executions.

States are now scrambling to collect enough of the drug to carry out scheduled executions. The governor of Kentucky has postponed signing further death warrants until such time they know the executions will be able to proceed, as their one remaining does expires this weekend.

California will have to stop executions from Friday because their stock of Sodium Thiopental expires, though not until after they have put to death Albert G Brown Junior, who has been sitting on death row since 1982 and will be the first person California has executed in four years. It seems this impending drought of necessary drugs has put some pressure on, apparently after four years of no executions and keeping Brown waiting for 28 years, they are rushing to ensure his execution before an expiration date of drugs which will ultimately kill him.

Initially Brown’s attorney’s requested a stay of execution because their client had not decided whether to be executed by the one drug or three drug cocktail (as mentioned before, both methods require the drug soon to expire). The Federal District Court denied the stay. Upon hearing about it the United States Court of Appeal of the Ninth Circuit ordered the Federal District Court Judge – Jeremy Fogel - to reconsider his denial of a stay of execution. “It is incredible to think that the deliberative process might be driven by the expiration date of the execution drug,” the Appeal Court wrote.

In 2006 Judge Fogel halted executions pending a review of the three drug cocktail procedure and deficiencies in the State’s methods and their antiquated facilities. The State then built a sparkling new death chamber at San Quentin and redrafted new regulations which were approved earlier this year. However Judge Fogel indicated he had not had the opportunity to carefully consider the new execution protocols due to the looming execution date and deadline the expiration date provided. Without giving proper time and consideration to the new protocols his own actions had required, how could he possibly deny a stay of execution?

Virginia successfully executed Teresa Lewis last week with the last of their supply, though they have no further executions currently scheduled. It’s a shame to think if that small amount of a chemical had only ‘gone bad’ a little quicker, or evaporated… or whatever, she might have been reprieved.

In Oklahoma the scheduled August 17th execution of Jeffrey Matthews was stayed when the State attempted to substitute another drug after running out of Sodium Thiopental. They have since managed to ‘borrow’ some from another State, though the stay does not expire until October 16th.


Texas, the busiest State for executions, have refused to indicate what their supply of the drug is, claiming it is because they are concerned for the welfare of the protesters outside the death house – such news might apparently ‘inflame them’ and ‘people could get seriously hurt or killed.’ Personally I think they are just trying to keep as much of it for themselves so they won’t have to put on hold any of the many executions they constantly have lined up.

There is currently a total of 17 executions scheduled throughout the country between now and January when the drug is expected to be released again.

I wonder what happens when Sodium Thiopental expires. Does it cease to be effective or does it become ‘too potent’ – if the latter, what are the concerns given the circumstances? I could understand the importance of an expiration date in hospitals, but really what’s the worst that could happen when they are being used to kill someone?

Ethical guidelines preventing the medical profession from involvement in executions extends to barring Hospitals from supplying prisons with the drug. There are no FDA approved sellers of the drug overseas, and changing drugs is hardly an option. It took lengthy court battles for some States to adopt the current procedures involving Sodium Thiopental and any alteration would invite further lawsuits (like in Jeffrey Matthew’s case - because naturally ‘we’ take any opportunity we can get to prevent executions, however temporarily) possibly suspending further executions beyond the next availability of Sodium Thiopental.

Death for the worst of the worst?

The death penalty is allegedly reserved for the worst of the worst. Would it be fair for a man to be executed for a crime less horrific or more justifiable than that committed by a man sentenced to life? Surely not, and yet if you take the United States of America as a whole it happens all the time. Take for example a man who lives in West Virginia and a man who lives in Virginia – they might commit exactly the same crime, but the man in West Virginia is not eligible for the death penalty because he has the good fortune of residing in and committing his dreadful deeds in a state which does not have the death penalty. His next door neighbor however is not so lucky. The simple fact of geography, and not merely the nature of the crime, may determine whether someone lives or dies.

In 1972, in the case of Furman v Georgia, the Supreme Court made void the death penalty statutes throughout the country. It is unfair, they cried, that this most serious of sentences be ‘freakishly’ imposed. Justice Stewart likened being sentenced to death to being struck by lightning, because it is a sentence handed out to a “capriciously selected random handful”. The Supreme Court determined the death penalty was in violation of the 8th Amendment in being cruel and unusual punishment because it was administered arbitrarily and discriminatorily. Four years later, after some rewriting of the laws, in the case of Gregg v Georgia 1976 the Supreme Court determined the new death penalty statutes were constitutional and the effective moratorium was lifted.

The new statutes reflected the concern that juries were not given the proper guidance in how to reach the decision of whether or not to kill a defendant they found guilty. Juries would henceforth be directed to consider the gravity of the crime, the aggravating factors involved in the crime, and the mitigating factors affecting the culpability of the offender. There are however additional factors which need to be addressed to prevent the death penalty from being arbitrary and capricious; as mentioned above, geography comes into play, consider also the fact that very few women are sentenced to death even when considered proportionately to men convicted of similar crimes. But perhaps more significantly is the issue of finance; those without money are forced to rely on overworked and underpaid public defenders, intelligent as such attorneys may be, they cannot always provide the most adequate of counsel. As Justice Ruth Ginsburg stated in 2001, “People who are well represented at trial do not get the death penalty… I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.” Justice should be blind should it not? How is it then that the system seems to see where a defendant lives, what race he or she is and how much money he or she has?


I mentioned above that women are rarely sentenced to death, but in order to exemplify how relevant these additional factors are to the ‘freakish’ nature of the death penalty I am going to present you with two women: Gaile Owens and Mary Winkler. These Tennessee women were both diagnosed by the same psychologist with battered woman’s syndrome, and they were both responsible for the deaths of their respective husbands. In 2006 Winkler shot her husband in the back, she was indicted for first-degree murder, convicted of voluntary manslaughter and is now free with custody of her children. Owens on the other hand hired someone to kill her husband, and is now on death row. Winkler testified to the abuse she suffered, Owens did not. Winkler’s friends hired for her an experienced criminal lawyer. Owens’ first attorney withdrew from the case due to lack of funding. Winkler plead not guilty due to being a battered woman, Owens attempted to plea bargain for her life but was unsuccessful. Two very similar cases with drastically different outcomes reflective of the manner in which the cases were tried: how the attorneys handled the cases, and the judges and jury dealt with the ‘battered women syndrome’ defense. Surely a sterling example of the arbitrary nature of the system leading to a death sentence, when a woman under similar circumstances not only avoided the same but served a sentence of only two months!

Compare Gaile Owens to Wayne Glasser. Gaile was a woman responsible for killing a man at whose hand she suffered years of abuse. Wayne Glasser is a rapist, he has sexually assaulted at least 12 children including his own stepdaughter, and admits to forced sexual contact involving 25 adult victims including his sister and other relatives. He was convicted last year of raping a woman in 1996, and faced 60 years in prison. Rape is not a crime eligible for the death penalty, yet surely Glasser’s prolific violent offenses are far worse than the desperate act committed by Gaile Owens. What kind of a justice system allows a sexual fiend to be sentenced to 60 years, when a battered woman must pay with her life?

Again referring to a woman sentenced to death I present to you the case of Teresa Lewis. Teresa, with two other men, killed her husband and stepson. Within months of her trial and sentencing, a letter from one of the two men turned up indicating that it was he, not Teresa, who had planned the murders. In a post conviction hearing one psychiatrist testified that Teresa has an IQ of 72, which when taking into consideration the 5 point standard deviation, is within the range of mental retardation. Since the 2002 case of Atkins it is unlawful to execute the mentally retarded. Nonetheless, Teresa is scheduled to be executed in less than two weeks. Perhaps this case still doesn’t seem shocking, or relevant to the point at hand, but while Teresa faces being put to death on September 23, her two co-conspirators, one of whom is admittedly more responsible for the crime than she, have only a life in prison to face.

Gary Ridgway, aka the Green River Killer, was very fortunate. Although he couldn’t afford an attorney, the State of Washington provided him with a fabulous team. On this team was Mark Prothero who has written a book, ‘Defending Gary’, which I recently read and would highly recommend to anyone interested in getting an insight into the enormous amount of work and huge commitment (not to mention the finance) a capital case requires, or into the mind of a prolific serial killer which admittedly is what enticed me. Gary Ridgway may well be responsible for the deaths of as many as 70 women, so many he lost count. He is surely by definition ‘the worst of the worst’. He confessed to 48 murders, and in providing the police with all the details he could recall so that they might close some cases and provide closure to families still waiting for their missing daughter/mother/wife to return, Ridgway avoided the death sentence. I wrote last time about the evils of using the death penalty as a bargaining chip – how it might cause false confessions and pervert the course of justice. In this case it was a benefit to the defendant – a guilty man managed to avoid the punishment supposedly reserved specifically for men such as himself, by admitting his deeds and divulging the gory details. As someone vehemently against the use of the death penalty one might expect me to rejoice that a person managed to avoid it, but what really strikes me about this case is how it exemplifies the horror of how unfairly this punishment is applied. If the death penalty is reserved for the worst of the worst how is it that you can execute a man who shoots one woman, but not do the same to a man who strangles at least 48? I’d rather of course that no one was executed, but I hope you get the point I’m trying to make – the death penalty is still arbitrary and capricious.

While there are many more examples of how unfairly the death penalty is applied, I feel I have ranted and raved enough for now. The conclusion I have tried to draw out with these cases is that the very reasons for which the Supreme Court quashed the death penalty in 1972 still exist – it remains arbitrary and capricious! It is not reserved for the worst of the worst; not only might two people who committed similar offenses under similar circumstances received different sentences, but that sentence can also be considerably harsher than someone who committed an undeniably more horrific offense.

The Death Penalty and False Confessions

Putting aside my own personal opinion of the death penalty, considering only the purpose of the justice system: to find the truth, the death penalty creates more danger than good. Here is why: -

Prosecutors choose whether or not they will seek the death penalty. There is no higher power to guide or check this decision. When faced with a crime for which they would not normally seek death, (perhaps because they don’t believe the jury would so decide and therefore don’t want to waste the expense of a capital trial), the prosecutor might still put the death penalty on the table to entice the suspect to confess. “If you tell us everything we won’t seek death, you’ll get to live. If you don’t talk, you will be executed.” They might even go into the gory details of the death the suspect might suffer through – how they are paralyzed and then suffocated… I digress. The point is, it’s used as a bargaining chip.

Personally I believe this is wrong in and of itself. But some might say – if the suspect is guilty what does it matter why or how he/she confesses? So I ask you – what if the suspect isn’t guilty?

Think it doesn’t happen? Imagine you are brought into the police station and accused of brutally murdering someone. The night of the event you were alone at home, you have no alibi. There was an eyewitness who not only described someone who looks just like you, but also picked you out of a line up. (I’ll have to go into the errors of eyewitness’s another time, or I’ll digress again). The police interrogate you for hours on end. An intelligent person might ask for an attorney, “If you’re innocent what do you need one for?” comes the response, at which point many waive their rights. The interrogation continues. You tell them you need a bathroom break; they make you wait until you’re busting. By now it’s been hours since your last meal, they grudgingly throw you a can of coke. You are sleep deprived. And here’s where it comes: ‘You did it, didn’t you?’ – You’re no longer sure what to believe, you’ve by now heard so many details of the crime you feel like you were there. ‘If you tell us about it, tell us what you did, we will make a deal for you. Otherwise you could face death.’

And this is before the Prosecutor is involved. The police don’t have the power to make such a deal. You are sleep deprived and running on the sugar and caffeine from the coke, you’re thoughts are blurred and you just want them to stop. “I did it! It was me!” you break. Don’t know what you did? Don’t worry, they’ll tell you. ‘You broke into that house and you stabbed that woman didn’t you?’ Maybe you hesitate, this has gone too far. ‘We know you did it. There’s no turning back now, you’ve said it yourself. Now if you want to save your life, you’re going to have to tell us what happened.’ And so you follow the lead, hoping at the end there’s a bed where you can rest.

In the 2002 decision of Atkins v Virginia the U.S. Supreme Court acknowledged that the mentally retarded are susceptible to making false confessions due to their suggestibility and desire to please. The Supreme Court ruled it is Cruel and Unusual Punishment to execute the mentally retarded thus making it illegal. I believe though, that the risk extend beyond just those of a low IQ who are easily influenced. In a country without PACE (the British legislation governing powers of the police), trapped in an interrogation room, facing a reality of life and death, anyone can become easily influenced.

Perhaps I can make the situation all the more real to you with a true-life example. Take the case of Wayne and Sharmon Stock of Nebraska. In the late night of Easter Sunday 2006 they were murdered in their own home, each shot in the head. Initially their nephew, Matthew Livers and a friend of his were brought in for questioning. Matthew had a motive – there had been a dispute over money. The police interrogated them for hours. Matthew was given a polygraph test, he was told he failed. Eventually Matthew confessed, following police prompting. The next day, after some sleep, he recanted. “I was just telling you what you wanted to hear,” he explained. The trouble is – the damage is done. What jury is going to believe that an innocent person not only confessed to the crime but seemed to know so many details? Details the suspect likely heard about earlier on in the interrogation. More damning was – Matthew said he had been driving a tan car, not dissimilar to what an eyewitness said they had seen fleeing the crime, added to which he had had it cleaned within hours after his Aunt and Uncle had died. However, for a secure case, without ‘reasonable doubt’, the police need more. The CSI go over the scene and evidence again. All of a sudden one CSI, Mr. David Kofoed, finds a speck of blood in the suspect’s car. A speck of blood his coworker had apparently missed before. Low and behold the blood in the suspect’s car matches one of the victims.

Another item of evidence also turns up in this heated investigation – a ring, found in the kitchen of the Stock’s house, which belonged to neither the victims nor the suspects. The ring had an inscription, which lead the police to a Miss Jessica Reid. She’s brought into the police station and interrogated to within an inch of her sanity. Having established she was at the scene of the crime, they desperately want her to ‘admit’ that the other two suspects were also present. ‘I don’t know those men,’ she adamantly tells the police, pushing away the photos they keep thrusting in front of her. But the police are certain these men were involved, there’s DNA evidence linking them to the murders, and they want an airtight case. So they bring out the big guns: ‘Tell us the truth about these men and you won’t be executed.’ They have her attention. ‘You met them at the bar beforehand didn’t you?’
‘Sure.’ She agrees. She knows they have her, she was there, she witnessed her boyfriend, Gregory Fester, kill the husband and wife. Now all she can do is save her own life. She tells them whatever they want to know in order to protect herself from a possible death sentence.

Two men put on the chopping board so a guilty woman can save her life. All in the so-called name of ‘Justice’. But this isn’t how you find the truth.

Jessica confides in an officer from another district, “I don’t know those men. They made me say they were involved, but they weren’t.” And it all comes out – the drop of blood in the car tying the two suspects to the crime was planted by the CSI – he has been tried and convicted of this criminal act. Kofoed was famous in Nebraska for finding evidence when no-one else could, calling into question now every other conviction he had helped to obtain. He maintains he is innocent, and that perhaps the speck of blood got into the car by accidental transference during the investigation. Assuming he did do it, no one can believe it was a malicious act – he wanted to ensure two guilty men, whom he knew were guilty because of the confession, were put behind bars. However in so doing he perverted the course of justice.

So the bottom line is: people, whether innocent or guilty, will say anything that is asked of them in the face of death. Justice and the search for truth are not reliable under such circumstances. The only way to ensure their protection is to take such a bargaining chip out of the game.