What Happens to the Death Penalty When Lethal Injection Isn’t Quick and Painless?

When all man had were rocks he stoned his fellow man to death. When he conquered the horse he used the noble beast to draw and quarter those he suspected of treason. When he mastered fire he burned heretics at the stake and when he forged iron he soon figured out how to use his sword, and then the guillotine, to behead his friends and neighbors. When he discovered the cross he learned to crucify. When he found that he could make rope, and tie knots, he learned how to hang a man from the neck until he was dead.

The first gun was followed closely by the first firing squad. When he discovered electricity it took him less than a decade to discover the electric chair. Next in line came the gas chamber. And then man discovered a new way to use science to kill, bloodlessly and clinically, the way a veterinarian might put down an animal. In the evolution of executions this is what we euphemistically call “lethal injection,” the medical procedure by which poisons are poured into the human body until life is extinguished. This is today the most humane practice our civilized society has been able to muster in its drive to keep capital punishment alive into yet another millennia.

For decades supporters of the death penalty in America have embraced lethal injection not just as an evolutionary plateau in the method of capital punishment but as a convenient solution to a problem that is both legal and moral. By purporting to ease the suffering of the condemned as he is killed, the procedure is supposed to neutralize concerns that any particular execution is “cruel” under the Eighth Amendment. And by purporting to put the prisoner to deep sleep first before the poison was administered, the practice is supposed to assuage whatever guilt exists in the minds of the executioner, or the administrator, over the intentional taking of life. We hide behind science, in other words, and then pat ourselves on the back for our ingenuity.

But these two pillars of support for lethal injection have always been based on a form of deceit. Making executions tidier does not make the dead any less dead or those who authorize the poison any less culpable for taking life. It is the act of capital punishment itself, not just the manner in which it is carried out, that carries the moral force. And no human development, no magic pill, no sterile syringe, can change that. This profound question is pertinent again, as a practical matter as well as a legal and political one, because recent developments in the practice of lethal injections have raised new doubts about the pain associated with their use. And if lethal injection protocols cause profound suffering the landscape of capital punishment as we know it may change.

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Things are moving quickly these days on the lethal injection front—more quickly than they have moved in many years. In Ohio last week, state officials finally succeeded in executing a man named Dennis McGuire in circumstances that ought to alarm every judge in the nation. “McGuire struggled, made guttural noises, gasped for air and choked for about 10 minutes before succumbing to a new, two-drug execution method at the Southern Ohio Correctional Facility near Louisville,” wrote Alan Johnson, a journalist who witnessed the execution for The Columbus Dispatch. A week earlier, when Oklahoma executed Michael Wilson the condemned man declared as his last words: “I feel my whole body burning.” This is not normal. Even though executioners often don’t have enough training, and there often is no peer review for their work, and the protocols often vary from the practice, the whole point of lethal injections is that they are supposed to take far less time and cause far less suffering on the part of the executed.

And that’s because executions by lethal injection are supposed to include the use of drugs like pentobarbital or sodium thiopental, both of which are no longer readily available in America. This is so because a company called Hospira, the sole American manufacturer of thiopental, stopped producing it early in 2011 after European manufacturers embargoed its importation here because of objections to its use in executions. As supplies of these “good” lethal injection drugs have dwindled, officials in those states that still perform executions have had to scramble for alternative drugs and other “mixes” for the cocktail. The result, to put it diplomatically, has been chaotic and not a little alarming as a matter of law—and medical ethics.

Both the cocktail that was used in Ohio to execute McGuire, and the one that was used to execute Wilson in Oklahoma, were evidently untested—that is, there was no known medical or regulatory oversight ensuring the efficacy of the drugs. Ohio used a mix of midazolam, a sedative, with hydromorphone, a powerful narcotic. Oklahoma used pentobarbital—but reportedly obtained it from a compounding pharmacy. What do you need to know about such pharmacies? Some were so lax in providing “safe” products to consumers that Congress and the White House were moved to act. President Obama last November signed into law a bill designed to better regulate the very businesses that now are supplying lethal injection drugs to states on the sly.

Except for what just happened to Wilson and to McGuire, none of this is news to the nation’s judges, who have known for years about the use of untested, compounded drugs in executions. Some state efforts have transcended the macabre. In Georgia, for example, officials seeking pentobarbital became so desperate they resorted to enacting a law authorizing the state to hide—even from its own judges—the means by which it obtained execution drugs. And as the Missouri execution of a man named Herbert Smulls approaches on January 29, his attorneys have filed a complaint with the state Board of Pharmacy alleging that the state is violating federal and state law by procuring pentobarbital from a compounding pharmacy in Oklahoma (that may also have provided the drugs that helped kill Wilson). Listen to this St. Louis Public Radio report on the turmoil in Missouri. Much of the same drill is happening in Louisiana as it prepares for a February 5 execution using drugs reportedly also obtained in Oklahoma.

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Immediately after the execution, McGuire’s lead lawyer proclaimed that his client’s pre-death ordeal might have been caused by “air hunger,” a medical condition involving great suffering. It was this very possibility that the defense team raised with U.S. District Judge Gregory Frost in the days leading up to the execution. “This is not a problem until it is actually a problem,” the judge concluded, begging the question of whether he would consider it a problem now. For their part, however, the family of Joy Stewart, McGuire’s long-ago victim, also immediately expressed what so many capital supporter believe when it comes to these sorts of circumstances. “There has been a lot of controversy regarding the drugs that are to be used in this execution, concern that he might feel terror, that he might suffer,” the family said. “He is being treated far more humanely than he treated her.”

And here in these two quotes is precisely why America’s new dynamic in lethal injections—the fact that they reveal pain and suffering by the executed—threatens to tear asunder the implicit bargain that has long existed on the means of capital punishment. Stories like those of McGuire are going to embolden death penalty opponents, who now may ask aloud again whether these events are “cruel” under the Eighth Amendment. But the very same stories also will infuriate supporters of capital punishment, many of whom believe that the whole purpose of the enterprise is to inflict pain upon the condemned before he is released into death. An eye for an eye is supposed to hurt, the Stewart family wants the world to know.

There is something very honest in these last two executions, then, that will likely force some in the middle of this debate to lean more closely toward one camp or the other. Those who support capital punishment comforted in the belief that its latest iteration was clinical—like putting a pet to sleep—will likely reconsider that support so long as the men strapped to gurneys are gasping for air. And those who have supported capital punishment hoping that it would inflict more pain on murderers will get to see what that really looks like in practice, execution after execution. In 2014, Americans can no longer pretend that they’ve come up with a way to have capital punishment without the pain, or the guilt, or the commitment to constitutional principles.

To me, what’s most fascinating about the drug drought, and the dubious fixes state officials have ginned up around it, isn’t just that the courts are going to have to look anew (and very quickly, judging by the list of coming executions this spring) at what they thought just a few years ago was the reasonably settled practice of lethal injections. It is that some states now are talking about moving backward on the evolutionary scale. Lawmakers in Wyoming and Missouri now want to go back and reestablish the firing squad as an option for those convicted of capital murder. If there is going to be pain in the death the state seeks to administer, those folks reckon it might as well come to a man standing at the end of a gun instead of lying down on a gurney with a needle in his arm. The future of capital punishment in America may also be its past.