Georgia and Missouri both executed death row inmates last night, in the first executions since Oklahoma’s botched execution left Clayton Lockett to slowly suffocate for 43 minutes. Oklahoma agreed to put executions on hold for six months after its bungled lethal injection generated national outrage. But other states resolved to go forward seven weeks later.
Both executions, like the one in Oklahoma, used lethal injection drugs manufactured in secret, at small-batch “compounding pharmacies” that are not, like most pharmacies, regulated by the Food and Drug Administration. John Winfield was executed at 12:01 a.m. in Missouri, after a federal appeals court rejected arguments that Winfield’s due process rights were violated when prison officials allegedly intimidated a prison employee who wanted to halt Winfield’s death. Marcus Wellon was executed just minutes earlier in Georgia, reportedly dying at 11:56 p.m. after the U.S. Supreme Court declined to block the lethal injection.
Another execution is slated to go forward late Wednesday in Florida of John Ruthell Henry. That execution will also use lethal injection drugs manufactured in secret. But while Georgia and Missouri used the single drug pentobarbital, Florida will use a three-drug cocktail containing midazolam hydrochloride, vecuronium bromide and potassium chloride.
Death row inmates have argued that executing an individual without disclosing the source of the drug violates the Eighth Amendment prohibition on cruel and unusual punishment. Because states are keeping the sources of these drugs secret from everyone — even the court — no outside entity can verify the reputation of the pharmacy, question the state testing performed, or assess how the drug was manufactured.
Several states are turning to these compounding pharmacies because of a shortage of lethal injection drugs from European drug-makers, thanks to international opposition to the death penalty. Over the past few years, inmates who were executed using small-batch barbituates from compounding pharmacies reportedly experienced prolonged, gasping periods before they finally died. These reports culminated in the recent Oklahoma execution, which was clearly botched, although early reports suggest human error during the injection may have also been to blame. States have defended the secrecy surrounding these injections by claiming that compounding pharmacies would face threats if their identity were disclosed.
Missouri’s execution was also mired in allegations of foul play that may have silenced advocates supporting Winfield’s clemency. A staff member in the prison where Winfield worked for several years wanted to write a letter on Winfield’s behalf urging Gov. Jay Nixon (D) to spare Winfield’s life because he was “not the same person who committed the crime that sent him to death row” and did not deserve to die. The staff member, Terry Cole, called Winfield in the “elite one percent of all inmates,” and said the lives of others would be better if he were permitted to live. But the day after he told his supervisors he planned to write a letter on Winfield’s behalf, prison officials opened an investigation against Cole that caused him to recant his letter, in what a federal judge ruled was likely intimidation.
That federal judge blocked Winfield’s execution, finding that the intimidation violated his due process rights. But an appeals panel overturned that ruling just hours before Winfield was scheduled to die, holding that the Missouri Department of Corrections cured the alleged error when it later ensured the submission to Gov. Nixon of Cole’s recanted statement. Several judges disagreed with this finding, writing, “that the state sent this statement to the governor would not alter a conclusion that Winfield’s due process rights have been violated. There is a significant difference between the governor receiving a committed voluntary statement in support of clemency and a later disavowed statement sent on behalf of a pressured witness. To conclude otherwise would ignore reality. Additional questions of fact remain as to what other evidence Cole might yet supply in the absence of state interference.”