Dennis McGuire struggled, choked, and gasped for air before he finally died, as his adult children watched on in horror. The state of Ohio used a never-before-used mix of drugs to kill him, and he appeared to slowly suffocate to death. Witnesses said the process took about 25 minutes, making it the longest execution since the state reinstituted capital punishment 15 years ago.
When Kelsey Kauffman, a retired Indiana resident and progressive activist, saw the headlines about McGuire — whose death sparked widespread outrage about the nature of lethal injections in the United States — she wanted to do something in response. So Kaufmann started a petition through SumOfUs, a group that allows citizens to organize to advance social justice causes.
Her ask? Get the American Pharmacist Association to add a sentence to its code of ethics to explicitly ban its members from participating in executions.
It may seem like a strange way to respond specifically to McGuire’s case, but this one change could be an indirect method of inching the country toward putting an end to executions altogether. “The Association could help put a stop to the manufacturing and supplying of drugs used for lethal injections,” Kauffman’s petition, which garnered more than 36,000 signatures, explains, “and help end the use of the death penalty in the U.S. once and for all.”
“I was reading an article last July about an execution that was postponed in Georgia because the Department of Corrections wouldn’t give any information to the lawyers or the judges about what execution drugs were going to be used and where they had gotten them from. The article mentioned that pharmacists, unlike other medical professionals, are not banned from participating in executions. And I remember thinking — wow, that’s surprising,” Kauffman recounted in an interview with ThinkProgress. “I happen to be opposed to the death penalty. But I’m especially opposed to the medicalization of the death penalty.”
Almost all major medical associations — the American Medical Association, the American Public Health Association, the American Board of Anesthesiology, and the American Nurses Association — prohibit their members from assisting in executions. These professional associations believe that taking another person’s life against their will is a violation of the Hippocratic Oath, and can’t be reconciled with health workers’ ethical obligation to care for their patients. There can be stiff penalties for violating that. The American Board of Anesthesiology, which updated its policy in this area just four years ago, stipulates that members who participate in executions will lose their medical certification.
But, while the American Pharmacist Association (APhA) has a similar code of ethics, the issue of executions isn’t specifically mentioned.
Kauffman believes that’s an oversight, not a calculated policy position.
“It hasn’t been an issue until now,” she said. It used to be that “when executions took place, you just got your drugs from some European distributor. You didn’t have doctors or nurses helping because they’re banned, so a lot of the problems with executions have centered around the fact that you have incompetent people doing physical executions — they can’t find veins, for example. But it’s not been a question of pharmacists.”
A controversy that hinges on pharmacies
Over the past few years, that’s changed. In 2011, the European Commission imposed tight restrictions on the export of certain drugs used in executions, citing ethical issues with the death penalty. A growing number of the European and Asian companies that make those drugs are now refusing to sell them for use in executions, too. This international opposition to capital punishment has left American states scrambling to get the drugs they need to continue executing inmates. And it’s meant that a small group of pharmacists are now participating in the executions.
States are turning to so-called “compounding pharmacies” — facilities that are outside of the regulatory scope of the Food and Drug Administration — to get the ingredients they need for untested cocktails like the one that killed McGuire. Compounding pharmacies, which repackage drugs to keep down the cost of filling prescriptions, are already controversial from a public health perspective. For instance, in 2012, a compounding pharmacy was identified as the source of a deadly meningitis outbreak that killed 36 people. Since then, Congress has worked to crack down on these unregulated facilities, although some public health advocates don’t believe the recent legislative push goes far enough.
Some compounding pharmacies have agreed to manufacture the drugs that states need to kill people, but state officials won’t always reveal the details. States like Oklahoma and Missouri claim that publicizing where they’re getting their lethal drugs will result in too much public pressure on the compounding pharmacies to stop producing them. So the methods they’re using for executions are increasingly kept secret, and it’s not entirely clear whether they’re violating the Constitution’s prohibition against “cruel and unusual punishment.”
Kauffman hopes that, if the American Pharmacist Association adopts a new policy position that forbids pharmacists from assisting in executions, this will all become moot because the employees at compounding facilities won’t be able to continue supplying these drugs. And, after attending APhA’s annual meeting at the end of last month, Kauffman believes senior officials in the pharmaceutical industry are receptive.
“I look at the American Pharmacist Association as a partner in this process, and when it comes to almost all of the pharmacists I spoke to, I see them as future allies,” she said, pointing out that medical professionals don’t have to be personally opposed to the death penalty to agree that it’s against their code of ethics to participate in them.
Dr. Leonard Edloe is one of those allies. Edloe, who now serves as a pastor in Virginia after owning and operating a community pharmacy for four decades, received a lifetime achievement award from the APhA at its most recent meeting. He believes very firmly in the policy change regarding lethal injection.
“I’ve always been against this method of execution,” Edloe said. “We’re supposed to be about healing, and this is the exact opposite of that. I don’t think most pharmacists are aware of the policy. They should be supportive of this campaign.”
The push to change APhA’s policy has also won the support of most of the country’s major human rights organizations. Amnesty International, the American Civil Liberties Union, Human Rights Watch, the NAACP, and the United Methodist Church are all co-sponsors of SumOfUs’ campaign, and have signed onto a letter that was sent to the association at the end of last month regarding the issue.
“I hope the Association takes a position that says we’re against it, and then pharmacists have enough ethical backbone to go along with it,” Edloe added.
The medical community’s problems with lethal injections
To the average American, lethal injection may seem like the best, most humane option for the people on death row. But that’s not necessarily the case.
Since pharmacists are the sole hold-out in this area, the health workers who typically ensure that injections are administered properly are barred from overseeing executions. With no experts in the room, the process can go awry.
Medical professionals don’t mince words about what that means in practice. At the end of last year, an anesthesiologist published an op-ed calling for the abolishment of lethal injection as a method of killing inmates, claiming that “what appears as humane is theater alone.”
“States may choose to execute their citizens, but when they employ lethal injection, they are not practicing medicine. They are usurping the tools and arts of the medical trade and propagating a fiction,” anesthesiologist Dr. Joel Zivot wrote in USA Today last December. He went on to explain that the drug shortages and the heightened secrecy surrounding compounding pharmacies have created an environment in which inmates are suffering painful deaths. Zivot believes that, if states want to continue executing people, they must return to the firing squad or the electric chair.
Writing in Slate, another medical professional, Dr. Matt McCarthy, agrees. “Part of the problem is the terminology: Words like injection and cocktail and gurney give the illusion that this form of capital punishment is civil,” McCarthy points out. “This allows, regrettably, for a softening of the perception of what is actually happening: Medications that were designed to heal have been repurposed to kill.”
Even the doctor who developed the original three-drug cocktail that has been used in lethal injections since 1977 has publicly come out against it. In 2007, three decades after Dr. Jay Chapman developed what he thought was the most humane method of ending a life, he suggested that the formula should be revisited — pointing out that it’s a complicated method that can fail in the hands of prison officials who aren’t medical experts.
“The simplest thing I know of is the guillotine. And I’m not at all opposed to bringing it back,” he said at the time.
Chapman’s suggestion brings up a central issue with capital punishment: The moral questions surrounding the death penalty come into sharp focus when inmates’ lives are ended in more obviously violent and graphic ways. And that’s exactly what the SumOfUs campaign is counting on.
Running out of options
Putting a definitive end to lethal injections means that states will have to find an alternate method for killing inmates. The majority of the states that still allow the death penalty don’t sanction another method for executing inmates other than lethal injection. So that would require getting the legislature to pass a bill to approve one.
But the other options — gas chambers, guillotines, hanging, fire squads — aren’t necessarily palatable to the American public. Even the states that technically have back-up methods on the books, like Missouri, which authorizes the use of a gas chamber to execute inmates, face significant roadblocks to actually putting that type of capital punishment method into practice.
“The [Missouri] attorney general last year asked the governor to request an appropriation of a million dollars to build a gas chamber. The governor, who’s very pro-death penalty, basically said — are you kidding me? In 2014, we’re going to build a gas chamber in Missouri? Forget about it,” Kauffman recounted. “The gas chamber is simply not going to come back.”
Similarly, Americans likely won’t be excited about bringing back hanging, which evokes the United States’ history of lynching black men. Virginia recently began pushing for the electric chair, but that bill stalled after an executioner testified against it, saying that electrocution isn’t a good option because it often leaves inmates’ bodies burned and blistered. And although some lethal injection opponents are joining Dr. Jay Chapman in arguing for the guillotine, which is the only method of execution that would allow inmates’ organs to be harvested, it’s not clear that Americans would actually have the stomach for that — particularly since public support for the death penalty as a whole has already plummeted to a 40-year low. States are running out of real options.
Kauffman believes the most realistic alternative is probably a firing squad. It’s certainly still gruesome, but it wouldn’t present ethical issues of medical professionals’ participation or counsel, since we already train people to be sharpshooters. It’s not just a hypothetical — at the beginning of this year, lawmakers in Missouri and Wyoming made headlines for proposing authorizing firing squads.
So execution by gunfire may be exactly where the states that don’t seem likely to give up capital punishment, like Texas and Louisiana, are headed. But that could also make those states seem particularly extreme.
“Just getting lethal injections banned does not end the death penalty. We’re well aware of that,” Kauffman acknowledged. “You’ve got these outlier states that are really into the death penalty, and they’re just going to switch to something else. But they’re also going to make themselves even more isolated than they already are. I think at some point, they’re going to be so few in number that the Supreme Court is going to say that the prevailing morality in the nation is that we no longer do these executions.”