EDITOR’S NOTE: This is the second story of a two-part series looking at the death penalty. The first article ran last week in The Tifton Gazette.

ATLANTA – Capital punishment practices across the U.S. continue to shift since the June 29, 1972, Supreme Court decision finding that capital punishment was often imposed discriminatorily and inconsistently.

Lethal injection is the primary form of execution in most states; however, when large pharmaceutical companies began pulling out of supplying the drugs used for lethal injections more than a decade ago, more states began looking to foreign countries and local compounding pharmacies. 

Compounding pharmacies typically prepare medicines for patients who are allergic to commercially available drugs or have rare diseases or conditions that can’t be treated through standard drugs.  

“There is no state in the United States that is obtaining drugs produced by a major pharmaceutical company unless they’re getting the drugs illegally, or through subterfuge,” said Dunham. “Most compounding pharmacies want nothing to do with with executions. But there are a few who are willing to do it, and so it’s those companies that the states are trying to obtain the drugs from.”

Scott Brunner, chief executive officer of Alliance for Pharmacy Compounding, said while the issue is serious, members of APC are discouraged from participating in the preparation, dispensing or distribution of compounded medications for use in legally authorized executions.

“It is important to first understand the origin of this issue: States have turned to compounded preparations for this purpose because the companies that manufacture the products traditionally used have unilaterally decided to stop selling them for use in executions,” APC said in a statement adopted in 2015. “APC believes that a national discussion needs to be conducted on whether a pharmaceutical manufacturer can restrict the use of FDA-approved products only to purposes that adhere to their corporate values.”

The drugs used in lethal injections range widely among Departments of Corrections, with various drug combinations. Pentobarbital is commonly used in single-drug executions, while chemicals such as sodium thiopental, vecuronium bromide and fentanyl are among drugs used in multi-drug injections.

Dr. Prashant Yadav, a Harvard lecturer who researches pharmaceutical supply chain system, said states’ use of compounding pharmacies for capital punishment jeopardizes the medicine supply chain and innocent lives, especially as almost all states with the death penalty have execution secrecy laws and policies. 

“Those compounding pharmacies are the ones who can get active pharmaceutical ingredients and then they will compound and make the drug for the State Department of Corrections,” Yadav said. “This creates a challenge that the compounding pharmacy, which would come under the compounding pharmacy law, will run into trouble if it was made transparent as to who’s the compounding pharmacy and many of them may choose not to go and do compounding for lethal injection. So as a result, some of the states started legislation which gave protection against transparency to some of the compounding pharmacies.”

Circumventing regular regulatory pathways, Yadav said, could create a regulatory vacuum in other areas of medicine. And because of transparency laws, it’s often  unclear whether the compounded drugs are tested, and if so, how often.  

“The decision of what cocktail of drugs to use in the past used to be based on what is ethical for use as a lethal injection, based on pain or other methods of ethics. From there, it has moved to what is available to be used in the market because the best cocktail may not be available because the manufacturers, in my opinion rightfully so, have withdrawn their products and said we’re not going to sell it to you,” Yadav said.  

More than a handful of compounding pharmacies supply drug compounds for lethal injection across the U.S.,  according to Yadav. Yadav encourages more regulation and less privacy on the use of compounding pharmacies in supplying drugs for lethal injections.

“It will prevent botched (injections) and it’ll reduce the small risks that exist of non-regulated pharmaceutical products starting to circulate in the U.S. market,” he said. “Those compounding pharmacies or importing agents have been allowed to sort of operate outside the regulatory purview both at the federal and at the state level. So it reduces that risk and it reduces the risk of botched execution.”

In April, Tennessee Gov. Bill Lee halted all five scheduled executions through 2022 due to lethal injection testing oversight stemming from the planned April 21 execution of Oscar Smith. 

“I review each death penalty case and believe it is an appropriate punishment for heinous crimes,” Lee said. “However, the death penalty is an extremely serious matter, and I expect the Tennessee Department of Corrections to leave no question that procedures are correctly followed.” 

U.S. Attorney Ed Stanton was tapped to conduct an independent review of the oversight, including circumstances that led to testing the lethal injection chemicals for only potency and sterility but not endotoxins preparing for the April 21 execution. 

While lethal injection is the default execution method in Tennessee, since 2019, three of four executions have been carried out by electric chair.

Historically, states have also used hanging, gas chambers and firing squads for executions.

States Reverting to Other Means

As the drugs used for lethal injection have become harder to obtain, many states have reverted to using forms of execution that were prevalent decades ago, including hanging, electrocution, the gas chamber and firing squads.

“In the few states that retain (the death penalty) and want to carry it out, we are seeing them engaging in more and more extreme practices in order to do so,” said Robert Dunham, executive director of Death Penalty Information Center, a nonprofit that analyzes issues concerning capital punishment. “You see states creating these secrecy laws that would be deemed intolerable in almost any other area of law. So they’re making the death penalty less and less publicly accountable and they’re engaging in more and more questionable and extreme practices to carry it out. It’s disappearing in most of the country and where it remains, it’s being carried out in an increasingly questionable manner.”

Stemming form the inability to acquire lethal injection drugs, South Carolina last year instituted a firing squad option. The process involves using three prison workers equipped with rifles shooting at the prisoner’s heart while the inmate is strapped in a chair and covered with a hood. 

Death by electrocution is also an option given to a death row inmates in South Carolina. In 2015, Utah lawmakers approved using firing squads as a back up method to lethal injection. Mississippi followed suit in 2017, allowing execution by firing squad if drugs for lethal injection or gas executions aren’t available.   

Arizona reportedly began purchasing ingredients for cyanide, a lethal gas. Alabama is also considering that option.  

“They have told courts that they’re moving forward with a nitrogen gas protocol. So that’s also something that’s happening,” Randy Susskind, deputy director of Alabama-based Equal Justice Initiative, said. 

In a Pew Research survey of more than 5,100 adults from April 5-11, 2021, 60% favor the death penalty for people convicted of murder and 39% oppose the death penalty.

Others Moving Away from Death Penalty

Eleven states have abolished the death penalty in the last 16 years — including Colorado, New Hampshire and Virginia. In recent years, legislative attempts to end the death penalty have occurred in Nevada, Utah and Ohio. 

“What we’re seeing is that the death penalty in the United States is in a long term decline. There are fewer states that have it, fewer county prosecutors are using it,” Dunham said. “The major counties in the United States are electing reform prosecutors who don’t want to pursue the death penalty, and so it looks long-term as though the number of states carrying out death census is going to continue to decline.”

“There are a number of states that fit the profile of a state that is more likely to abolish the death penalty, but you can never say with any certainty which state is actually going to do it,” Dunham said. “I don’t think anybody expected that Virginia was going to abolish it last year, but people were pretty sure that Colorado was going to abolish it the year before.”

Virginia is the only Southern state that has abolished the death penalty.

“Unlike most of the rest of the country where there’s definitely a decline in the use of the death penalty and movements to abolish the death penalty, and the death penalty has been abolished in a lot of states in recent years, that hasn’t happened in Alabama. They’re still actively pursuing death sentences,” Susskind said.  

Opponents of the death penalty say execution comes with risks, including the possibility of executing an innocent person.  

Since 1973, at least 189 people who had been wrongly convicted and sentenced to death in the U.S. have been exonerated, according to DPIC. One in eight persons sentenced to death are exonerated.

“When we look at the exonerations nationwide last year, there were 13 cases that we’ve identified in which people were exonerated last year after having been wrongfully capitally prosecuted — the death penalty wasn’t necessarily imposed — or witnesses in their case testified falsely against them because they’ve been threatened with the death penalty,” Dunham said. “The wrongful use and the wrongful threat of the death penalty contributes to wrongful convictions beyond just those in which innocent people are set to death row.”

For example, in Texas, Carlos Deluna was falsely executed in 1989 for the murder of a gas station attendant that was later learned to have been allegedly committed by an acquaintance who looked almost identical to Deluna, according to reports.

More recently, Melissa Lucio was scheduled to be executed April 27 in Texas for the 2007 death of her 2-year-old daughter. However, a stay was granted for execution allowing new evidence to be heard in court proclaiming her innocence.  

So far in 2022, seven executions have been carried out in five states, and that includes in Alabama, where another execution is scheduled for July 28, that of a Black man for killing his girlfriend in 1994. 

In Georgia, Virgil Presnell, Jr. was set to be executed in Georgia this year for killing an 8-year-old and raping her friend 46 years ago. His execution was stayed on grounds that the execution date violated the state’s  which executions could resume after the COVID-19 pandemic.

Georgia and Alabama are the only states that do not provide counsel for death row inmates following a conviction. 

“Racial Discrimination is also an issue that has led many courts to reverse differences such as discriminating and how the jury was selected or their forms of racial bias that came into play in the trial,” said Anna Arceneaux, executive director of Georgia Resource Center, a nonprofit law firm which provides representation to Georgians on death row. “That’s why it’s so critical that we do have an office like ours to provide representation to people and ensure that we have a system that allows, through the appellate process, people to demonstrate to the courts, they’re the errors that infected their trials.

Opponents of death penalty also cite the time consuming and high cost of death row cases, including lengthy appeal proceedings, juror selections, court backlogs and heavy caseloads, and evidentiary issues.

However, as the Pew survey indicated, many strongly support the death penalty. Proponents, such as Alabama Gov. Kay Ivey, have stated that execution is justice for “heinous” crimes such as murder.  

Following the October 2021 execution of Willie Smith III — a Black man convicted of robbing, kidnapping and fatally shooting a white woman in 1991— Ivey said, “In dealing with this unimaginable and tragic loss, (the victim’s) loved ones have endured years of Mr. Smith attempting to avoid due punishment and then a delayed execution earlier this year. Mr. Smith had more time on death row than Ms. Johnson had in this life.

“The evidence in this case was overwhelming, and justice has been rightfully served. The carrying out of Mr. Smith’s sentence sends the message that the state of Alabama will not tolerate these murderous acts,” she said.  

Alabama Attorney General Steve Marshall said, “When a capital murderer is due to receive his just punishment, one always hears accusations of ‘cruel and unusual punishment,’ with that term rarely used in a way that accords with its constitutional meaning — and absolutely never used in reference to the victim’s loved ones… Finally, the cruel and unusual punishment that has been inflicted upon them — a decades-long denial of justice — has come to an end.”

Yet, as of June 2021, 33 people wrongfully convicted and sentenced to death since the 1970s had waited 20 or more years to be exonerated, according to DPIC. 

Anthony Ray Hinton, one of Alabama’s longest death row prisoners, of 30 years, was released from prison in 2015 after being falsely convicted of two capital murders. 

“I think that the system is not reliable enough to administer something as final as the death penalty,” Susskind said. “People have been exonerated after being sentenced to death. There are people currently on death row who have claims of innocence and life without parole isn’t adequate punishment. But it’s basically reliability, racial bias, innocence, arbitrariness. There are lots of different factors why the death penalty shouldn’t be imposed.”

Execution can also be costly as it pertains to individual cells and staff needed to house and monitor a death row inmate, cost of execution drugs and staffing required to carry out an execution.  

Pennsylvania Gov. Tom Wolf in his 2015 moratorium on the death penalty sought to analyze its effectiveness, citing an a flawed system and endless cycle of court proceedings as well as ineffective, unjust and expensive.

 “Today’s action comes after significant consideration and reflection,” Wolf said. “This moratorium is in no way an expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes. This decision is based on a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust and expensive.”

Georgia’s last execution was in January 2020. Alabama has performed at least one execution each year since 2016.