SALT LAKE CITY — It took 23 minutes for Carey Dean Moore to die after he was injected with fentanyl and three other drugs by executioners in Nebraska, which carried out Moore’s death sentence for the murder of two cab drivers nearly 40 years ago.
For state officials, the Aug. 14 execution was a success, since Moore died without the disturbing complications that have made lethal injection the most botched method of execution since it was first used in the United States in 1982.
But Nebraska's use of fentanyl, the synthetic drug at the center of the nation's opioid epidemic, has raised eyebrows and reignited debate about whether lethal injection is a morally acceptable way to carry out the death penalty.
Four death row inmates in Tennessee recently filed suit, charging that lethal injection is the type of cruel and unusual punishment the Eighth Amendment prohibits and asking that they be executed by a firing squad instead.
And justices of the U.S. Supreme Court will hear arguments in November regarding a condemned man in Missouri who would rather be killed with nitrogen gas than by lethal injection because of a medical condition. On Tuesday, the justices heard another death penalty case on whether executing a prisoner with dementia is constitutional, regardless of the method.
Attorneys who specialize in death penalty cases say not to read too much into these types of lawsuits. “The method of execution is, in many ways, an argument of last resort on the part of people who are trying to keep people from being executed,” said Christopher Slobogin, director of the criminal justice program at Vanderbilt University School of Law in Nashville, Tennessee.
But regardless of the outcomes of individual cases, a troubling question dogs the 31 states that allow a death penalty: Why are lethal injections so problematic?
“It’s amazing to me that we can’t find a more efficient way, a better way, of killing people than we have today,” Slobogin said.
Is fentanyl that solution or is it time for death penalty states to come together and decide on a uniform procedure, as one legal expert says? Or is it time for America to abolish the death penalty, as other nations have?
A dubious first
Nebraska became the first state to use fentanyl in an execution only because Nevada’s attempt to do so was blocked by a judge.
Nevada had planned to execute Scott Dozier in July using fentanyl and two other drugs; Dozier received the death penalty for the murder and dismemberment of a 22-year-old. But the execution was put on hold indefinitely after a legal challenge by the maker of one of the other drugs.
Such challenges have been commonplace since lethal injection became the most common method of execution in the 1980s. Of 16 prisoners executed in the U.S. this year, all have died from lethal injection. The number would have been 17, except that one scheduled execution was derailed in February when a team in Alabama failed to insert an IV in Doyle Lee Hamm's legs, ankles and groin and called off the execution more than two hours after it began.
Attorneys for Hamm, who killed a motel night clerk during a robbery in 1987, later said the attempted execution was an ordeal “that can only be accurately described as torture,” while the Alabama corrections commissioner said, “I wouldn’t necessarily characterize what we had tonight as a problem.”
Hamm and his pro bono attorneys then challenged any second attempt at execution, saying another attempt would be a case of double jeopardy, and within two weeks, the state announced a confidential settlement that gives Hamm life in prison.
Hamm is one of three inmates who survived a state execution, but there are 20 other cases in which the execution team struggled to find a suitable vein to administer the drugs, causing death penalty opponents to charge that the inmates were subjected to torture.
The possibility of an execution method, thought to be humane, turning into torture is also central to the case that will come before the U.S. Supreme Court this fall.
InBucklew v. Precythe, Missouri inmate Russell Bucklew and his attorneys will argue that lethal injection will subject Bucklew to agonizing and prolonged pain because of a medical condition that has caused tumors in his head and mouth that make it difficult to breathe when lying down.
The inmate, given a death sentence for murdering a Missouri man in front of four children and his former girlfriend and then going on a violent crime spree, has asked to be gassed with nitrogen, instead.
(Bucklew v. Precythe is the second of two cases involving the death penalty that awaits the Supreme Court. Another, Madison v. Alabama, concerns whether it's constitutional for a state to execute an inmate with dementia who can no longer remember killing a police officer in 1985.)
Austin Sarat, the William Nelson Cromwell professor of jurisprudence and political science at Amherst College in Massachusetts, examined a grisly parade of botched executions in his 2014 book “Gruesome Spectacles: Botched Executions and America’s Death Penalty.”
“My research has shown, there’s no foolproof way of doing it. In the last 100 years, 3 percent of all executions have been botched, with lethal injection having the highest rates, between 7 and now 8 percent,” Sarat said.
When lethal injection became popular after the death penalty was reinstated in 1976, states saw it as preferable to what are considered more violent methods of execution, such as the firing squad or the electric chair. And for a while, the states uniformly used a three-drug protocol that worked efficiently, more or less, Sarat said.
But when one of the drugs was no longer available, and pharmaceutical companies began resisting the use of their products, states scrambled to find alternatives, which is how fentanyl has come to be in the mix, despite the questions over the propriety of its use.
“It’s certainly not very good optics to be using drugs that we’re trying to either prohibit or at least minimize,” Slobogin, of Vanderbilt, said. “But, on the other hand, I’m not a scientist, but if it is, in fact, a way of killing someone painlessly, then arguably it should be a preferred method of execution.”
The problem is, it’s unclear why Nebraska used it.
Fentanyl was the second of four drugs given in the procedure, after the drug given to sedate Moore, and before the drug given to stop his heart. Nebraska corrections officials did not respond to questions by the Deseret News, and death-penalty experts say they’re not sure what the fentanyl was intended to do.
“There’s something odd about taking a drug that’s done so much damage and using it in a lethal injection,” Sarat said. “But part of the concern about fentanyl isn’t just a concern about fentanyl. It’s that what’s happening now with lethal injection is a form of experimentation on human beings."
What's cruel? What's unusual?
The Eighth Amendment, ratified in 1791, gave Americans protection from “cruel and unusual punishment” but what’s considered cruel and unusual has changed significantly over time. In 1821, few Massachusetts residents protested when 16-year-old Stephen Clark was hung for setting a barn on fire the previous summer. In fact, the somber ceremony was watched by “hundreds, maybe thousands of spectators,” according to Stuart Banner, author of “The Death Penalty, An American History.”
Having no sufficient way to imprison people for decades, colonial America regularly executed people for nonviolent crimes such as counterfeiting money or stealing horses. It wasn’t until the late 1700s that meaningful opposition to the death penalty emerged, not only as punishment for lesser crimes, but for all crimes, a debate that continues today. Pope Francis recently reignited the debate among Catholics, calling the death penalty “an attack on the inviolability and dignity of the person.”
And Nebraska's execution using fentanyl was the first after the state pivoted abruptly on the death penalty. Three years earlier, the state had outlawed it. Capital punishment was reinstated on a ballot drive.
But even in states that embrace the death penalty, corrections officials endeavor to ensure that the condemned man or woman does not suffer — or, at least, that witnesses don’t have to watch the dying person suffer. Some death penalty opponents have charged that states employ paralyzing drugs not to benefit the condemned, but the onlookers, who are protected from the prospect of unsettling death throes.
But their main objection to lethal injection is the lack of a scientifically designed protocol.
“The thing about fentanyl is that it’s experimental and unproven. I can’t tell you if it’s a good method or not, but there are serious concerns that have been raised about whether the prisoner in Nebraska was experiencing pain when he was executed,” said Rob Owen, clinical professor of law at Northwestern University in Illinois and a co-founder of the Capital Punishment Center at the University of Texas at Austin.
Some witnesses have said that officials closed the curtain in their observation room before Moore died, making them unable to observe him in his dying moments. Others have said Moore’s face turned red, then purple, as he was dying.
Because physicians are prohibited by professional ethics to participate in executions or even to advise on the drugs used, the protocol is designed by people without sufficiently training for killing someone painlessly, Owen said.
“The biggest concern I have about this right now is that fentanyl is just a big question mark,” Owen said. “It speaks to the kind of experimental, unsettled, unscientific quality of a lot of what goes on around these lethal injections. It’s improvisational stuff by people who are not medical experts.”
What the states could do
Part of the problem of establishing a protocol is that executions in most states are so sporadic that with each one, a new team of people is involved, said Deborah Denno, the Arthur A. McGivney professor of law at Fordham University in New York who has been studying lethal injection since 1990. (The last person executed in Utah was in 2010.)
Also, unlike prescribed deaths of terminally ill people to right-to-die states, physicians aren’t involved. And as pharmaceutical companies wage legal battles to stop states from getting their drugs, the problem is getting worse, she said.
“Not only has this been happening for a long time, but it’s getting worse and more reckless. It’s worse than it’s ever been,” she said, adding that the length of time that it took for Moore to die — 23 minutes — isn’t evidence that the procedure went well. One witness to the Moore execution was a journalist who witnessed a dozen executions in Missouri and said many of them took less than five minutes.
Denno said that death penalty states could potentially solve the problem by agreeing to work together to devise a lethal injection protocol that all would use. There are no federal restrictions beyond the Eighth Amendment, and also nothing prohibiting states from agreeing on a common method with recommendations by experts.
“States could come up with something if they wanted to, but they won’t relinquish their rights,” she said. “But that would be the humane thing to do.”
Although a report by Pew Research Center earlier this year shows that 54 percent of Americans support the death penalty, opponents point out that there’s an easy way to resolve the issues surrounding lethal injections: by ending capital punishment, which can be imposed in 31 states, the federal government and the military.
Bill Pelke, whose grandmother was murdered in Gary, Indiana, by four teenage girls, was initially in favor of the death penalty for Paula Cooper, identified as the ringleader, but changed his mind after the girl was sentenced to die in the electric chair. (Cooper’s death sentence was later commuted after public outcry. She served 24 years in jail and committed suicide in 2015, two years after her release.)
Pelke, who lives in Anchorage, Alaska, is a co-founder of Journey of Hope, an organization of murder-victim family members that promotes healing through forgiveness and alternatives to the death penalty, which he says punishes more people than the inmate.
He said he believes that his grandmother, who was stabbed with a butcher knife in her home as she said the Lord’s Prayer, would have been “appalled” at the idea of Cooper going to the electric chair, and upset by how it would devastate the girl’s family.
“For the family of the person being executed, I think a lethal injection is probably kinder to them than something like an electric chair or firing squad,” he said.
But, Pelke added, “I’m opposed to all executions. I don’t think there’s a humane way to kill anybody.”
There are nine more executions scheduled in the U.S. this year, in Texas, Ohio, Tennessee and South Dakota, according to the Death Penalty Information Center.