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Another botched U.S. execution stokes new anger over painful punishment

This undated file photo provided by the Arizona Department of Corrections shows inmate Joseph Rudolph Wood. The U.S. Supreme Court on Tuesday, July 22, 2014, allowed the Arizona execution of Wood to go forward amid a closely watched First Amendment fight over the secrecy surrounding lethal injection drugs in the country.

AP Photo/Arizona Department of Corrections, File

Clayton Lockett wouldn't do what he was supposed to do. He wouldn't die.

For 43 minutes in April, the convicted murderer lay on a gurney inside the Oklahoma State Penitentiary's execution chamber, lethal drugs running through his body but his heart still beating. His feet kicked, his teeth clenched, he mumbled incoherently. More than half an hour in, the execution was finally called off by the director of Oklahoma's Department of Corrections. Mr. Lockett died anyway 10 minutes later of a heart attack, according to corrections officials.

On Wednesday, it happened again. Witnesses said Joseph Wood, a convicted double murderer, continued to gasp and struggle to breathe after Arizona prison officials injected him with a cocktail of drugs to kill him. He did not die until nearly two hours had passed, and not before his alarmed lawyers pleaded with a federal judge to stop the "cruel and unusual punishment" and revive Mr. Wood.

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A string of high-profile botched executions has drawn widespread criticism from U.S. President Barack Obama and other elected officials, horrified human-rights groups and prompted several states to temporarily halt planned executions. After Mr. Wood's execution, Amnesty International researcher encapsulated the controversy. "How many more times do officials need to be reminded of the myth of the 'humane execution' before they give up on their experiment with judicial killing?" he asked.

Since the first American was put to death using the lethal-injection method in 1982, it has become the standard means of capital punishment in the United States. But a number of botched executions this year – including at least two in Oklahoma and one in Ohio – have put the practice, as well as the death penalty itself, under intense scrutiny.

The picture that has emerged, after myriad court challenges and cases similar to that of Mr. Lockett, is of an execution system plagued by intense secrecy and a lack of standard protocol. Both Mr. Lockett and Mr. Wood had demanded to know the mix of drugs that the states would use to execute them, arguing unsuccessfully in court that keeping the information secret violated their constitutional rights.

But beyond institutional problems, a growing number of drug companies within the United States and around the world are refusing to make or sell to corrections officials any drug that may be used for execution. As such, a severe shortage of the basic drugs necessary to carry out lethal injections has forced some states to improvise with untested chemicals, sometimes with horrific results.

"This has been going on for 32 years," said Deborah Denno, a law professor at Fordham University and one of the country's leading experts on the death penalty. "Things have gotten worse now than they ever have been. We're seeing a pattern of devastating executions where people have suffered."

The United States is one of the very few developed nations in the world that still employs the death penalty, and that position has led to one of the thorniest legal and political showdowns in the country today – one that pits constitutional prohibitions on cruel and unusual punishment against a state's right to use the most extreme form of punishment on those convicted of the most extreme crimes.

The modern history of the death penalty in the U.S. began in 1976, with a series of Supreme Court decisions that essentially came to the conclusion that several states' newly revised death-penalty guidelines did not violate the Eight Amendment, which prohibits cruel and unusual punishment.

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Since then, roughly 1,400 people have been executed in the United States by hanging, electrocution, lethal gas and firing squads. But by far the most popular method, accounting for a little less than 90 per cent of executions, is lethal injection.

As with most contentious national issues in the United States, the norms of lethal injection vary wildly from state to state.

Thirty-two states now authorize the death penalty, as do the federal government and the military. Most states that use lethal injection tend to use a cocktail of drugs to kill condemned prisoners – for example the anesthetic sodium thiopental, followed by the muscle relaxant pancuronium bromide, and finally potassium chloride, which stops the heart.

Other states, such as Missouri, have attempted to use a single drug, the popular anesthetic propofol. (Missouri halted a planned propofol execution last year after concerns that Europe, which supplies the vast majority of the drug to U.S. hospitals, would halt imports if the drug was used to kill.) Some states have complex dosage guidelines taking into consideration, for example, the prisoner's size and weight. Others use the same dosage across the board, potentially increasing the likelihood of a botched execution.

The potential for something to go wrong is also aggravated by the fact that most health-care professional groups, including the American Medical Association, have prohibited their members from involvement in capital-punishment proceedings on ethical grounds. The lack of trained medical professionals willing to facilitate executions is particularly important given that many death-row inmates may have health issues that make proper injection difficult, such as damaged veins.

But in recent years, state officials have also had to contend with a near-universal reluctance on the part of drug makers to see their chemicals used in executions. In 2009, Hospira Inc., the only American maker of sodium thiopental, sought to build a manufacturing plant in Italy. There was only one problem: Italian authorities wanted assurances from the company that the anesthetic would never be used in an execution. After much discussion, and fearing it could be held responsible in Italy for a use of its drug in the United States, Hospira got out of the sodium thiopental market altogether in 2011.

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And because the U.S. imports so many of the drugs used in executions from European nations, the continent's near-universal abhorrence of the death penalty has had a profound impact on capital punishment in the United States. Not only have European countries refused to provide chemicals for executions, but their American counterparts have also declined, fearing an outright European ban on the export of medically vital drugs.

That has left many state officials scrambling for solutions. In Oklahoma, corrections officials tried a new, untested drug in Mr. Lockett's botched execution. In Utah, a lawmaker has proposed bringing back firing squads. In the modern U.S. history of the death penalty, execution by firing squad is the only method that has never failed.

Chiefly, however, many corrections agencies have turned to the compounding pharmacy industry. Traditionally, compounding pharmacies have been used to create small batches of customized drugs – for example, when a patient needs a particular medication but is allergic to one of its ingredients. Compounding pharmacies differ from many other American health-care industries in two important ways: They are, in some cases, relatively less well-regulated and they have no overarching qualms about synthesizing drugs for executions.

The Texas-based International Academy of Compounding Pharmacists (IACP), which represents about 3,600 members of the profession, takes no formal position on the creation of death-penalty drugs.

Despite its official non-stand, it is clear the group is somewhat wary of the practice, as is evident by an IACP document advising its members on involvement in capital-punishment proceedings. "First, make sure your professional liability insurance provides coverage for such an action. Second, consider the potential security implications to your practice, your employees and your families."

It is on that second point that some state officials have seized as justification for shrouding the drug-appropriation policy in secrecy. In recent years, states such as Missouri have also expanded their definition of "execution teams," to include those who create and supply drugs, thereby allowing the state to keep their identities secret. Other states, such as Texas, have no specific laws covering compounding pharmacies, but have refused to provide their identities anyway.

"Execution procedures have always been cloaked in secrecy," said Megan McCracken, a death-penalty specialist at the Berkeley School of Law. "What's new is that [some states are] doubling down on the secrecy, with even more information coming under this cloak."

Lifting that cloak has proven difficult in part because of the long-established tradition of keeping the identity of executioners secret, but also because those who would benefit most from knowing the source and makeup of lethal injection drugs – the potential victims of botched executions – are not a demographic that often inspires sympathy. Less than two months after the uproar over Mr. Lockett's death put a temporary halt on some states' execution plans, three states executed inmates in a single 24-hour period in June.

The new wave of intense secrecy surrounding execution procedures come as the death penalty itself appears to be slowly declining in both usage and public approval.

According to the Death Penalty Information Center, the use of capital punishment in the U.S. has been on a downward trend since the turn of the millennium. In 1999, 98 people were put to death nationwide. In the last four years, the annual number has hovered between 39 and 46.

The decline in usage mirrors a growing distaste among Americans for the death penalty in general. In the late 1990s, some 78 per cent of Americans approved of the death penalty, while 18 per cent opposed it, according to the Pew Research Center. Last year, 55 per cent approved, and 37 per cent opposed.

"I think it's inevitable, and this is a long ways away, that this country will eliminate the death penalty at some point," said Prof. Denno.

"The overall global justification for secrecy is the desire to perpetuate the practice. There's a growing awareness that if you lift the veil of secrecy, we're just not going to have executions any more."

Executions that went wrong in the U.S. from 2006 to 2014:

Joseph L. Clark

Convicted of murdering a man during a gas station holdup

Execution: May 2, 2006, in Ohio

After technicians spent 22 minutes searching for a suitable vein, Mr. Clark's arm began to swell. He then raised his head off the gurney and said five times: "It don't work." Technicians then spent another 30 minutes before finding a suitable vein. Journalists later reported hearing "moaning, crying out and guttural noises." Death was pronounced 90 minutes after the process began.

Angel Nieves Diaz

Convicted of murdering a strip-club owner

Execution: Dec. 13, 2006, in Florida

After the first injection was administered, Mr. Diaz squinted and grimaced as he tried to mouth words A second dose was then administered and about 34 minutes later, Mr. Diaz was declared dead.

Christopher Newton

Convicted of murdering a cellmate after an argument over a chess game

Execution: May 24, 2007, in Ohio

Medical staff struggled to find a vein in Mr. Newton's arms, jabbing him at least 10 times. He was declared dead almost two hours after the execution process began.

John Hightower

Convicted of murdering his wife and her two daughters

Execution: June 26, 2007, in Georgia

Medical staff spent about 40 minutes finding a suitable vein to administer lethal chemicals. Death was not pronounced until 59 minutes after the execution process began.

Curtis Osborne

Convicted of murdering a man and a woman to avoid paying a $400 debt

Execution: June 4, 2008, in Georgia

After a 55-minute delay while the U.S. Supreme Court reviewed a final appeal, prison medical staff struggled for 35 minutes to find a suitable vein. Then it took 14 minutes after lethal drugs were administered before death was pronounced.

Romell Broom

Convicted of raping and murdering a 14-year-old girl

Execution attempt: Sept. 15, 2009, in Ohio

Mr. Broom's execution was terminated after medical staff were unable to find a useable vein in his arms or legs, blaming the problem on his history of intravenous drug use. Ohio Governor Ted Strickland then announced physicians would be consulted on a more efficient method. Five years later, he remains on death row awaiting an Ohio Supreme Court appeal ruling on whether a do-over would be cruel and unusual punishment or violate double-jeopardy rules.

Brandon Joseph Rhode

Convicted of killing a man and his son and daughter during a burglary

Execution: Sept. 27, 2010, in Georgia

After the Supreme Court rejected his appeals, medics tried for about 30 minutes to find a vein to inject a lethal concoction. It then took 14 minutes until death was pronounced. The execution had been delayed six days because a prison guard had given Mr. Rhode a razor blade which he used to attempt suicide.

Dennis McGuire

Convicted of raping and stabbing to death a pregnant newlywed

Execution: Jan. 16, 2014, in Ohio

Mr. McGuire gasped for air for 26 minutes before dying. Witnesses said after the injection, Mr. McGuire struggled, with his stomach heaving and fists clenched, making "horrible" snorting and choking sounds.

Clayton D. Lockett

Convicted of shooting a woman with a sawed-off shotgun and watching as two accomplices buried her alive

Execution: April 29, 2014, in Oklahoma

Mr. Lockett writhed in pain as a needle became dislodged during his injection. The process was then halted, but he died shortly after of a heart attack 43 minutes after the execution began.

Source: U.S. Death Penalty Information Center

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