In Ohio last month, Dennis McGuire took 26 minutes to die after a previously untested mix of chemicals began flowing into his body, gasping repeatedly as he lay on a gurney. On Jan. 9, Oklahoma inmate Michael Lee Wilson's last words were: "I feel my whole body burning."
The dilemma again grabbed national attention this week when an Oklahoma pharmacy agreed Monday to refrain from supplying an execution drug to the Missouri Department of Corrections for an upcoming lethal injection. Death row inmate Michael Taylor's had argued in a lawsuit that recent executions involving the drug pentobarbital would likely cause "inhumane pain" — and, ahead of a hearing set for Tuesday, The Apothecary Shoppe said it would not provide the drug.
EU nations are notorious for disagreeing on just about everything when it comes to common policy, but they all strongly — and proudly — agree on one thing: abolishing capital punishment.
Europe saw totalitarian regimes abuse the death penalty as recently as the 20th century, and public opinion across the bloc is therefore staunchly opposed to it.
The EU's uncompromising stance has set off a cat-and-mouse game, with U.S. corrections departments devising new ways to carry out lethal injections only to hit updated export restrictions within months.
"Our political task is to push for an abolition of the death penalty, not facilitate its procedure," said Barba Lochbihler, chairwoman of the European Parliament's subcommittee on human rights.
Europe's tough stance has caused U.S. states to start experimenting with new drug mixtures, even though convicts' lawyers and activists argue they increase the risk of painful prolonged death and may violate the constitutional ban on cruel and unusual punishment.
In an upcoming execution in Louisiana, the state is set to follow Ohio's example in using the untested drug cocktail used in McGuire's execution. It changed its execution protocol last week to use Ohio's two-drug combination because it could no longer procure pentobarbital, a powerful sedative.
The execution was scheduled for February, but was stayed pending a federal judge's examination in April regarding whether the state can proceed with the plan to execute Christopher Sepulvado, convicted in the 1992 killing of his 6-year-old stepson.
In 2010, Louisiana switched from the established three-drug protocol to a one-drug pentobarbital lethal injection, but eventually that drug also became unavailable because of European pressure.
"The lethal injection that they are using now in certain states has never been tested, verified, let alone been approved for executions," said Maya Foa of Reprieve, a London-based charity fighting the death penalty. "This amounts to using humans as guinea pigs. No doctor would ever do that."
Ohio prosecutors counter that condemned inmates are not entitled to a pain-free execution under the Constitution.
Even if the effect of the two drugs used by Ohio "presents some inherent risk of discomfort, that does not amount to cruel and unusual punishment," Christopher Conomy, an assistant Ohio attorney general, argued in court documents last month.
The U.S. execution dilemma goes back to 2005, when the EU restricted exports of goods "for the purpose of capital punishment or for the purpose of torture." That ban includes items such as electric chairs and lethal injection systems.
The drug shortage then started biting in 2010 when Hospira Inc., the sole U.S. manufacturer of sodium thiopental, a sedative that is part of the normal three-drug mixture, stopped production. A few months later, Hospira dropped plans to produce it in Italy because the government there asked for guarantees that it would never be used in executions.
States in 2011 switched to pentobarbital, but Denmark-based Lundbeck Inc., the drug's only U.S.-licensed maker, faced a public backlash and quickly said it would put the medication off-limits for capital punishment through a tightly controlled distribution system.