After a series of legal battles, a Supreme Court order was released at 2 a.m. on Tuesday, July 14, that allowed for the first execution carried out by the federal government since 2003 — the lethal injection of Daniel Lewis Lee. Two days later, the highest Court in the land handed down a 3 a.m. order on Tuesday allowing for a second federal execution of Wesley Purkey.
The pair of executions came after U.S. Attorney General William Barr announced last year that the Trump Administration would resume federal executions, adding more recently that officials “owe it to the victims of these horrific crimes.” Support for the death penalty has waned in America in recent years, though; its use has been abolished by 22 states, and several others haven’t carried out an execution in a decade, according to The Death Penalty Information Center.
When the death penalty is implemented now, it is almost exclusively done by lethal injection, a method that was once thought — like the electric chair and the guillotine before it — to be a "humane" way of carrying out what many would say is an inherently inhumane act: killing another person. Lethal injection executions have been thought to be a "modern" way of killing someone — "painless." But the presumption that lethal injections are anything close to pain-free is wrong.
In the past, federal executions were carried out via administration of multiple drugs — now, the Trump Administration has said they'll only be using one drug: pentobarbital.
Pentobarbital is a barbiturate — a group of drugs that depress the nervous system and often have a sedative effect, that are used in much smaller doses to treat insomnia. When used in high doses for lethal injections, it causes a person’s nervous system to totally shut down in a manner similar to an overdose.
Jonathan I. Groner, a professor of surgery at the Ohio State University College of Medicine, who’s done extensive work related to the death penalty, contends that pentobarbital is a "particularly bad" method of execution, for a couple of reasons.
"If the IV isn't placed in the vein as it's supposed to be, or it's injected too fast so that some of the medication leaks out of the vein, that drug can cause actual chemical burns," Dr. Groner says.
Another issue: It's hard to access. “No pharmaceutical company wants to be associated with a drug that kills people,” Dr. Groner says. Because of this, officials have had to get creative when getting their hands on the drug. In Texas, executioners had to turn to compounding pharmacies, which typically make alternative versions of drugs that are already on the market. But if the pharmacies create a version of pentobarbital that isn’t potent enough or that’s contaminated in some way, it could lead to a botched execution. This happened on more than one occasion in Texas: William Rayford writhed on his gurney and Anthony Allen Shore said as he died that he could feel the drugs “burning,” according to a Buzzfeed News investigation. “We used to burn people at the stake, now we just do it chemically,” Dr. Groner says.
Days before he was executed, Lee’s lawyers argued using the drug to kill him would be cruel and unusual punishment, violating the Eighth Amendment. “Pentobarbital will likely cause needless suffering,” lawyers argued in the application for a stay of execution filed in the Supreme Court on behalf of Lee on July 13. Refinery29 obtained a copy of this application.
“A majority of inmates executed using pentobarbital suffered flash pulmonary edema during their execution,” the document continues, citing the expertise of two doctors— Mark Edgar, MD, a pathologist at Emory University, and Gail Van Norman, MD, a professor in the department of anesthesiology and pain medicine. “Flash pulmonary edema is an excruciating drowning sensation caused by foam or froth in the airways. Because it occurs ‘virtually immediately during and after high-dose barbiturate injection.’”
The document adds that prisoners may experience “sensations of drowning and asphyxia” that “result in extreme pain, terror and panic.” It asserts that this feeling “is deliberately elicited in ‘the enhanced interrogation technique’ called waterboarding,” and is “one of the most powerful, excruciating feelings known to man.” The DOJ did not respond to Refinery29’s request for comment.
This isn't to say that using multiple drugs is a "better" option for the state-sponsored killing of a person. The three-drug cocktail that over a dozen states have used involves administering a barbiturate, often sodium thiopental; another drug that causes all the body’s muscles to arrest; and a dose of potassium chloride that stops the heart. However, the barbiturate can be short-acting, and may wear off by the time the third drug, the lethal dose to the heart, is injected.
The use of lethal injection appeals to some people because of its implied ties to science and medicine, signaling that some level of research and thought has been put into the practice. However, Dr. Groner says, “If you look way back in history, there was much more research done on the electric chair than there was ever done on lethal injection. [Thomas] Edison tested it on animals and so forth... But lethal injection started out basically with someone writing a recipe out on a dinner napkin. There was never a clinical trial I know of.”
Since the first official use of the practice in the U.S. in 1982, more than 7% of all executions carried out by lethal injection have been botched, according to the Death Penalty Information Center. That’s a higher rate than any other execution method used in the last 120 years, including hanging, electrocution, lethal gassing, and firing squad — no wonder Dr. Groner calls lethal injection a “massive medical charade.”
Dr. Groner says there aren't studies where you see lethal injection tested on animals, and researchers haven't found a foolproof way to effectively put people down without causing pain — though veterinarians do it with dogs almost daily.
Dr. Groner has met two men from Ohio who survived their own botched lethal injections, including death row inmate Romell Broom, whose IV lines could not be inserted by officials after two hours of attempts by prison EMTs and a doctor. Another, Alva Campbell, had extensive medical problems that prompted officials to allow him to use a wedge pillow during his execution to help him breathe while lying on his back. But, in the death chamber, executioners couldn't find a viable vein. They abandoned the execution, but "let him keep the pillow," Dr. Groner says.
Another horrifically botched execution was that of Clayton Lockett in Oklahoma in April of 2014. His execution took 43 minutes before he died. A vein exploded in that time, according to Tulsa World.
And methods haven’t really gotten better since Lockett’s death, nor were they ever good to begin with. “Lethal injection is just as brutal today as it was when it first came about,” says Dale Baich, an assistant federal public defender in Arizona who works keeping death row inmates out of the death chamber.
And for those who are thinking: Well, these men committed heinous crimes — they deserve to die, even if it means suffering? Baich says: “As citizens and as a society, we should be better than that.”
I asked Baich what could be a viable replacement for lethal injection. “The alternative is life without the possibility of parole,” he says. “If that person is never going to get out of prison, that is an effective punishment… They have experimented with different drug combinations, and what we know from the experts is that the combinations and the single-use drug still cause pain and cause suffering.”
There are, of course, other reasons to back off from the death penalty than just faulty methods of implementation. Its history is inextricably linked to anti-Black racism, explains Sam Spital, the director of litigation for the NAACP Legal Defense and Educational Fund. “That history persists today,” he says. “It is the ultimate expression of our society’s denial of the humanity of Black people. It’s reflected in studies showing that people convicted of killing white victims are far more likely to receive the death penalty.”
Between 1988 and 2019, in over two-thirds of the more than 500 cases in which the attorney general authorized federal prosecutors to seek death, the defendant was Black or Latinx, Spital adds.
On top of this, Dr. Groner points out that it’s odd to go to such lengths to kill death row inmates at a time when prisoners are being hit hard by the coronavirus, with COVID-19 cases in federal and state prisons more than five times more prevalent than that of the general population, according to The Journal of the American Medical Association.
“We have a public health crisis and all the resources of the government should be directed to try to take care of this critical situation we’re in,” Baich adds. “Instead resources and attention are being diverted to trying to carry out a handful of executions.”
Earlene Peterson — whose daughter, son-in-law, and granddaughter were tortured and killed by Lee and his accomplice — didn’t support Lee’s execution at all, and told CNN that she didn’t want it “done in her name.” But, it's time to really consider whether it should be done in anyone's name at all.