Time to End the Death Penalty

by Alex Mikulich, Ph.D.

On February 7, 2013 Federal District Judge James Brady indefinitely stayed the execution of Christopher Sepulvado because the state of Louisiana failed to provide details of its new execution protocol.  The protocol concerns who administers it, what drugs are utilized, and how the drugs work.  Whether or not the protocol sustains the prohibition against “cruel and unusual punishment” in the Eighth Amendment of the U.S. Constitution stands at issue.

Sepulvado was convicted twenty years ago in the murder of his six-year old stepson, Wesley Mercer. Scheduled for February 13, Ash Wednesday, Sepulvado’s was the first non-consensual execution planned in over ten years.  Although it is not widely reported, members of Mercer’s family have forgiven Sepulvado for the crime.

Judge Brady wrote that “Sepulvado has been trying to determine what the protocol is for years and the State will not provide this information.  The intransigence of the State in failing to produce the protocol requires the Court to issue this order.”  The Judge explained that “there is no way that Sepulvado could adequately, meaningfully bring an Eighth Amendment challenge if he does not know how the protocol operates.”

I visited Christopher Sepulvado and a fellow inmate on February 9, 2013.  Sepulvado exemplifies humility and grace in the midst of his predicament.  Although we were relieved by the stay, the threat of execution remains.  Chris provided a beautiful blessing over the meal that we shared.  I was most deeply blessed by the way that a fellow inmate sought forgiveness from Christopher and by their loving reconciliation.  Their reconciliation stands as witness to the Spirit that calls all of us to love and reconciliation in this sacred season of Lent.   

At issue in the execution protocol is who administers it, what drugs are utilized, and how the drugs work.  The American Medical Association (AMA), the National Association of Emergency Medical Technicians (NAEMT), the American Board of Anesthesiology, and the American Nurses Association (ANA) unequivocally oppose their medical professionals participating in capital punishment because it violates their oaths to protect human life and erodes public confidence in the medical profession.

Physicians, emergency medical technicians, anesthesiologists, and nurses who participate in an execution directly violate their professional code of ethics and fundamental responsibility to protect life.  

Executioners are not medical personnel and their lack of knowledge is another dimension of the problem of administering a new protocol. How executioners would kill inmates without utilizing “cruel and unusual punishment” strains reason and morality.

Louisiana had previously used a three-drug protocol, but just recently said it planned to use one drug, pentobarbital.  Since Oklahoma first adopted a lethal injection protocol in 1977, thirty-five states have used a three-drug protocol. The U.S. Food and Drug Administration (FDA) has never sanctioned use of this three-drug protocol.

Ostensibly, the three-drug protocol includes one drug that puts the inmate to sleep (sodium thiopental), a second drug that paralyzes the muscles (pancuronium bromide), and a final drug that stops the heart (potassium chloride).

In 2008, the Supreme Court of the United States upheld the constitutionality of the three-drug protocol in Baze v. Rees.

Diminishing All of Us: The Death Penalty in Louisiana cites scientific studies that find that “if thiopental and potassium chloride fail to cause anesthesia and cardiac arrest, potentially aware victims could die through pancuronium-induced asphyxiation.”

As one group of medical editors puts it:  “Execution by lethal injection…has the same relationship to medicine that an executioner’s axe has to surgery (note 33 in Diminishing All of Us).”  

That three-drug protocol changed two years ago when the European Union and its member states imposed strict limits on the distribution of the drugs. As European nation-states have abolished the death penalty, European policy is to work actively for prohibition worldwide, says Sarah Ludford, a member of European Parliament.

Another problem is that in Arizona and Georgia, according to the New York Times, the sodium thiopental used in executions has possibly been ineffective and almost certainly illegal.  Arizona and Georgia obtained the drug from Dream Pharma, an unlicensed British supplier that was operated out of a driving school.  The drug was made by a company based in Austria in 2006 that went out of business (the drug lasts only one year).  In 2011, several states surrendered supplies to federal agents that states obtained through Dream Pharma.

Meanwhile, in January 2011, the U.S. manufacturer Hospira, Inc. of Lake Forest, Illinois announced that it would no longer produce sodium thiopental.  Hospira produced the drug in Italy and Italian authorities refused to allow export of the drug if it was for use in capital punishment.  No other American companies produce the drug.  

Only one company, Lundbeck Inc., marketed pentobarbital in the U.S. until it was sold to Akorn, Inc. in December 2011. Akorn signed an agreement promising that it would not sell the drug for the purpose of executions.  Whether Akorn is pursuing alternative drugs to sell to states for executions remains unclear.

Although some states still have stockpiles of pentobarbital, others may rush executions to use lethal-injection drugs before the expiration date.

The lack of a recognized protocol in Louisiana underscores the point Supreme Court Justice Stevens conveyed in Baze v. Rees: “Instead of ending the controversy [of lethal injection], I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent pancuronium bromide, but also about the justification for the death penalty itself.”  

As Sister Nancy Conway wrote in the Times-Picayune on Ash Wednesday, now is the time to “pray for divine mercy for [Christopher] and please pray [and work] for the ultimate abolition of the death penalty” so that we will yet witness to the love and reconciliation to which we are called.