Convicted murderer James Holmes is now awaiting his sentence.
He faces the death penalty for his crimes, a punishment two-thirds of Coloradans believe he deserves.
But lethal injection drugs are increasingly hard to obtain. If the jury sentences Holmes to death, is Colorado actually capable of carrying it out?
Like all 31 states that still allow capital punishment, Colorado uses lethal injection as its primary means of execution. But it almost never happens: The 1997 death of Gary Lee Davis remains the state’s only execution in almost 50 years, and the only time Colorado has ever performed a lethal injection. We are, in the words of death penalty activist Sister Helen Prejean, “not a killing state.”
The Colorado Department of Corrections, tasked with performing executions, doesn’t even keep drugs for the procedure on hand. Their shelf life is less than the average 10 years it takes for a death penalty appeals process.
In March of 2013, five months before death row inmate Nathan Dunlap was scheduled for execution, The Denver Post reported that CDOC was still struggling to acquire a crucial drug.
Tom Clements, CDOC’s then-director, wrote a letter to 97 compounding pharmacies across the state in an attempt to acquire sodium thiopental, a rapid-onset anesthetic critical to the state’s lethal three-drug cocktail.
Clements sought the pharmacies’ help because the drug is now nearly impossible to find ready-made. Hospira Inc, the only producer in the nation, stopped making it in 2011. The E.U. has blocked its export for use in executions. But compounding pharmacies are less than eager. In March this year, the American Pharmacists Association called upon its members to stop providing any drugs for use in executions.
In light of Clements’ letter, the ACLU in 2013 submitted an open records request to CDOC asking for a copy of its execution protocol. (The agency initially didn’t comply, forcing the ACLU to file a lawsuit.)
What they found was troubling. Colorado law demands lethal injection be administered with “a lethal quantity of sodium thiopental or other equally or more effective substance sufficient to cause death.”
The protocol from 2011 calls for Sodium Pentothal, the name brand of sodium thiopental. But the 2013 protocol, with no change in state law, calls for “Sodium Pentothal/Pentobarbital,” implying that the two are interchangeable despite being two different drugs. (When pentobarbital was used in the 2014 Oklahoma execution of Michael Wilson, he reportedly said he felt his “whole body burning.”)
Colorado is not the only state scrambling for alternatives. Oklahoma, Tennessee and Utah have authorized the use of the gas chamber, electrocution and the firing squad, respectively, if lethal injection drugs become unavailable. And the U.S. Supreme Court recently ruled that midazolam, the controversial drug linked to multiple botched or prolonged executions across the country, is constitutional for use in lethal injections.
Ultimately, the ACLU’s investigation came to a halt when Gov. John Hickenlooper granted Dunlap an indefinite stay of execution. But the discrepancy between protocol and state law raises concerns about the secrecy that goes along with lethal injection.
How can the public stay informed about the death penalty when no organization will publicly admit to selling the drugs? How do we determine what drugs count as an “equally or more effective substance to cause death” without being able to properly test them?
Gov. Hickenlooper’s stay of execution for Dunlap means the state, at least for now, isn’t actively seeking out lethal injection drugs. His office didn’t return requests for comment, but the governor has said publicly that he will not allow an execution during his term. The other two men on death row will not exhaust their appeals for years.
If sentenced to death, James Holmes can expect the appeals process to take 10 years or more.
By that time, Colorado’s lethal injection protocol—and indeed, its stance on the death penalty—could look quite different.
Photo credit: Cristian C Creative Commons, Flickr