The final words of two condemned men have placed Oklahoma at the forefront of the national debate over capital punishment and the constitutionality of the drugs used in lethal injections.
On Jan. 9, Michael Lee Wilson, 38, was put to death for participating in the 1995 murder of Tulsa store clerk Richard Yost. Shortly after the drugs began to flow into Wilson's body, he expressed love to his family and the world. After a short pause he gave his final words: “I feel my whole body burning.” Seconds later he was dead.
On Jan. 23, Kenneth Eugene Hogan said he had a metallic taste in his mouth as he was executed for stabbing to death a college student in Oklahoma City.
Could the statements by Wilson and Hogan indicate a problem with the three-drug cocktail used to carry out executions in Oklahoma and other states, or violate constitutional protection against cruel or unusual punishment?
Wilson's last words were cited in a lawsuit brought against the Missouri Department of Corrections by death row prisoners seeking basic information about the pentobarbital intended for use in their executions.
Pentobarbital is a barbiturate used in the execution process to render the condemned person unconscious. Another drug paralyzes the person and a third stops the heart.
Lundbeck, the Danish company that makes pentobarbital, is no longer distributing it to states that conduct executions, saying this is a “distressing misuse of our product.”
Redacted documents from the Missouri Department of Corrections revealed the state was acquiring pentobarbital from a business in Oklahoma, and the records pointed to three possible pharmacies. The Apothecary Shoppe, a compounding pharmacy with locations in Tulsa and Broken Arrow, was one of the three, and similar documents from the Louisiana Department of Corrections show the shop was also in correspondence with them.
Questions arose about the legality of a pharmacy not licensed in Missouri providing the state with drugs for lethal injection purposes. Cindy Hamilton, chief compliance officer for the Oklahoma State Board of Pharmacy, told The Tulsa World no state laws were violated because officials from Missouri drove to Oklahoma to obtain the drug.
Sarah Lees, spokeswoman for the Apothecary Shoppe, said once the business was sold to its employees it went through the process of reapplying for licensure in surrounding states, including Missouri, Texas, Arkansas and Kansas. She said it is possible the pharmacy also applied for licensure in Louisiana, but she could not confirm that.
Lees also declined to comment on whether or not the business compounds or sells pentobarbital.
Compound drug safety
Compounding pharmacies mix or alter drugs mainly for individual purposes, such as removing a particular ingredient a patient may be allergic to or creating a liquid form of a pill for children.
While compounding pharmacies are required to be licensed by the state in which they practice, they do not have to register with the U.S. Food and Drug Administration, nor do their products have to be approved or tested by the FDA.
“Basically, we don't know A) what the drugs could possibly be contaminated with and B) we don't really know if they're produced at the concentrations and things that we would expect to have from FDA approved drugs,” said Jen Moreno, staff attorney at the UC Berkeley Law Death Penalty Clinic. “That's really the troubling aspect of using compounded drugs, is that you don't really know until you have information what you're actually getting or using.”
In 2012, federal health officials said 64 people died and 686 others were sickened by steroids cleared by Oklahoma City-based Analytical Research Laboratories for a New England compounding pharmacy.
On Thursday, a colleague of Moreno's, Eighth Amendment Resource Counsel for the UC Berkeley School of Law's Death Penalty Clinic Megan McCracken, filed a lawsuit against the Oklahoma Department of Corrections for not promptly responding to a Jan. 1 open records request asking for, among other things, drug chain of custody documents, correspondences with pharmacies, and any records or documents regarding the manufacturers and distributors of any drugs used for the purpose of execution.
“What we know about Oklahoma is that we really don't know very much,” Moreno said.
“It's probably one of the states where we get the least amounts of information about what they're doing.”
According to Oklahoma statute, “The identity of all persons who participate in or administer the execution process and persons who supply the drugs, medical supplies or medical equipment for the execution shall be confidential and shall not be subject to discovery in any civil or criminal proceedings.”
Death penalty experts like Moreno argue the use of pharmacies that are not federally regulated raises moral and ethical questions about the lethal injection process in America. She said in order to determine that pharmacies used by state corrections departments adhere to quality standards it is important states be as transparent as possible.
“I think that the problems of the drugs that Oklahoma is using is a complete mystery,” said Moreno. “The Oklahoma Department of Corrections has provided no information either to plaintiffs — and I mean plaintiff by inmates — or journalists about where they are getting their drugs, if the drugs are in fact being compounded, and whether or not they're coming from a pharmacy that's reputable, that meets quality standards. And, furthermore, certainly haven't provided any information on the purity or potential contaminants of the drugs that they've received.”
This lack of transparency is typically not applied to other uses of taxpayer dollars, said Executive Director of the Death Penalty Information Center Richard Dieter, a national nonprofit that studies issues concerning capital punishment.
“If they were building a bridge, they'd have to say where the girders are coming from and the bolts and who makes them and how you test them to make sure the bridge will stand up,” said Dieter. “In this case, they're carrying out executions but not saying in any detail where they're getting the drugs from and what is the education of the people putting them together and the licensing of these places, how they test their own drugs.”
Dieter said not only does the public have a right to know the facts, it isn't the government's responsibility to protect the interests of private companies.
“Yeah the company that provides the drug may be embarrassed, they may even lose business, but we don't protect against that sort of thing,” said Dieter. “Be open about it and let the public decide. I think that's the concern, that we're hiding from ourselves or we're letting the government hide information that generally we would demand.”
An open records request submitted jointly by The Oklahoman and The Tulsa World last month asking for documents pertaining to companies or pharmacies that provide the state with execution drugs, amounts paid and execution protocol have only been partially fulfilled.
On Friday, state Corrections Department spokesman Jerry Massie told The Oklahoman while statute specifically says all “persons” who supply execution drugs is confidential information, requests for the names of pharmacies or businesses that provide pentobarbital likely would not be granted.
“Corporations are considered persons under the law,” said Massie.
Oklahoma purchased 20 doses of pentobarbital in the summer of 2012 for $40,000, said Massie. Of those 20, 10 doses remain. It's not clear where Oklahoma got this supply. In 2011, Lundbeck ordered that its pentobarbital no longer be sold for use in executions.
Questions have been raised in other states about the expiration dates of pentobarbital and how the drug is stored. Massie said Oklahoma's doses are already in a usable form and have a shelf life of three years. He said the state Corrections Department's remaining supply is not stored at a state facility.
Oklahoma statute provides that if the lethal injection method of execution is found unconstitutional the state may again use electrocution, which was last used in Oklahoma in the 1966 execution of James French, 29. If electrocution is found unconstitutional, statute allows for the use of firing squad.
Massie said if lethal injection is found unconstitutional or pentobarbital runs out, it is more likely a stay of execution would be granted until an alternative can be acquired, rather than the use of the electric chair.
Last month, the state of Ohio tried a never before used drug combination in the execution of Dennis McGuire. It took McGuire 25 minutes to die in what defense attorney Allen Bohnert called a “failed, agonizing experiment.”
The possibility of again trying new drugs for executions is a troubling and problematic scenario, said Brady Henderson, legal director for the Oklahoma branch of the American Civil Liberties Union.
“Basically, what we're doing is a form of human experimentation, at the end of the day,” said Henderson. “What can happen is executions can start becoming experiments, and what that means is it's much harder to predict whether a particular technique is going to produce something that is cruel and unusual, to use constitutional terms.”
Dieter agrees, again pointing to the necessity for public opinion on how inmates should pay the ultimate price to society.
“If this were another country that was trying new ways of executing people, we would be somewhat shocked. And, if it were in this country in any other context, say taking involuntary patients and trying a drug that had never been used before or any combination and forcibly injecting it into a person,” said Dieter, “I realize it's the death penalty, but it doesn't erase all ethical and constitutional protections.”
“I think instead what's happening is (states are) saying what's available, and when it's available they're using it and not sure exactly what's going to happen, at least the first time.”
The state Corrections Department currently has no backup plan for how to carry out lethal injections if pentobarbital becomes unavailable and a suitable alternative is not found.
“We'll address that when that possibility arises,” said Massie.