Eight days after Florida executed Happ, Missouri planned to put Allen Nicklasson to death with propofol. The anesthetic, which contributed to Michael Jackson's death by overdose in 2009, had also never been used before for a human execution. But buckling from pressure from the medical community, which argued propofol could inflict inhumane levels of pain, Gov. Jay Nixon halted Nicklasson's execution to ensure "justice is served and public health is protected." But a more practical matter was likely weighing on Nixon's mind: The capital-punishment-free European Union likely would have imposed strong restrictions on the export of the drug to the U.S.
A Solution or Another Stopgap Effort?
As some states zig and others zag to keep their executions from being interrupted, elsewhere, in unsuspecting places, exasperated politicians are publicly questioning whether capital punishment is worth the growing avalanche of legal and practical headaches. In Arkansas, a state with a rich history of executions (Bill Clinton famously flew home from campaigning in 1992 to preside over Ricky Ray Rector's execution), Gov. Mike Beebe, a moderate Democrat, said earlier this year that he would sign a bill ending the state's death penalty if it came to his desk.
Attorney General Dustin McDaniel, also a Democrat, has been even more forceful. Though he supports capital punishment in principle, McDaniel has begun publicly scrutinizing the practice. Due in part to the difficulty in obtaining the necessary drugs—and a bevy of related legal challenges—his state has not carried out an execution since 2005 despite having nearly 40 prisoners on death row.
"Our system is completely broken, and I don't know how to say it more bluntly than that," McDaniel told National Journal. "It's a complete impossibility. I can no more flap my arms and fly across the state than I can carry out an execution."
Doctors and researchers aren't exactly clamoring to develop new methods of killing people, and no one is advocating a regression to older forms of execution, like the electric chair or gas chamber. But even if a new, cutting-edge technique was developed somewhere, that too would almost certainly provoke a torrent of litigation.
"Let's say that there was magically a vapor, a mist, a pill, a fatal hypnotic stare. You still have to find American manufacturers who are willing to produce it and courts who are willing to accept it," McDaniel said. "I don't see any of that happening. It's science fiction and legal fiction."
McDaniel said he has considered turning to compounding pharmacies—where products are chemically crafted to fit an individual person's needs—within the state to produce lethal-injection cocktails as "the only remaining option." But despite successes found in Georgia, South Dakota, and Texas, McDaniel predicts that "there is no way a compounding pharmacy will pass the litigation muster."
Already, compounding pharmacies have proven to be a difficult path to forge. Texas restocked its supply of pentobarbital by turning to a pharmacy in suburban Houston, which was publicly identified through a Freedom of Information request made by the Associated Press earlier this month. The "outed" pharmacy then demanded Texas return its drugs, which the state refused. Meanwhile, three inmates on death row are suing the state on grounds the drugs could cause cruel and unusual punishment, as their production is secretive and beyond the regulatory purview of the Food and Drug Administration.
Missouri, hard up after deciding to forgo using the anesthetic Michael Jackson overdosed on, announced last week that it, too, had settled on compounding pharmacies to produce pentobarbital.
Three bills—one in the Senate, two in the House of Representatives—dealing with regulatory oversight of compounding pharmacies have earned committee consideration this year. Such legislation is likely to restrict a state's ability to rely on compounding pharmacies for its lethal drugs because they would force more transparency, tighten prescription requirements and expose physicians to liability.
Lethal injection states are stuck, and quickly running out of places to turn to secure the ingredients needed to execute a growing backlog of prisoners on death row. Medical practitioners and pharmaceutical companies are in the business of saving lives, not helping to end them, and are increasingly unwilling to have their name associated to the practice.
Advocates like Denno see this rising tension as an unexpected boon for their cause, something that is succeeding where more-conventional methods—Eighth Amendment lawsuits, innocence projects, and demonstrations of racial and socioeconomic bias—have failed.
"The drug shortage and what caused it and what perpetuates it and what results from it has nothing to do with the execution process in this country. Nonetheless, it may be the factor that ends up finally abolishing the death penalty," she said. "And it's an irony because it's nothing any death-penalty litigator could have hoped for."
Capital punishment in America is not going to disappear overnight. But an executioner stripped of his tools is as good as a toothless shark.
"When the death penalty goes, it's not just going to be, well, we couldn't figure out a way to kill people," DPIC's Dieter said. But "it's one more straw on the camel's back."
Correction from National Journal: A previous version of this article said German manufacturer Fresenius Kabi had threatened to stop shipping propofol to the U.S. if Missouri used the drug in its executions. The European Union has stated it would likely restrict the drug's exportation to the U.S. in such an event.