WASHINGTON — Kent Sprouse is set to die Thursday by lethal injection, a method of execution botched so often lately that the Supreme Court will weigh in on its constitutionality later this month.
Sprouse, however, isn’t likely to get a reprieve. That’s because he’s imprisoned in Texas, far and away the nation’s leader in lethal injections and a state that has managed to carry out a regular schedule of executions without mishap.
The state recently snared a new supply of pentobarbital, the drug of choice for executioners in a country fast running out of humane ways to kill death row inmates. That should give Texas enough of the barbiturate to execute four men at its Huntsville state penitentiary this month, bringing its total to 526 lethal injections since it spearheaded the practice in 1982.
But other states — and some of the prisoners they have executed of late — can’t find pharmacies willing to supply drugs that can kill reliably, without the gasps and groans the Supreme Court has indicated may violate the Constitution’s protection against cruel and unusual punishment.
In three weeks, the justices will consider a challenge from three death row inmates to Oklahoma’s lethal injection method, one that’s used by several other states. A ruling against the use of midazolam, a sedative that lacks the knockout punch of pentobarbital, as part of a three-drug cocktail would further crimp the country’s ability to execute prisoners.
Even if the court does not rule against Oklahoma, a number of other developments are pointing toward the diminution of the death penalty in America:
• Six states — New York, New Jersey, New Mexico, Illinois, Connecticut and Maryland — have abolished capital punishment since 2004.
• Several other states have imposed moratoriums on lethal injections because of problems, ranging from botched executions in Oklahoma and Ohio to a “cloudy” drug concoction in Georgia.
• The Supreme Court has ruled that juveniles and people with intellectual disabilities cannot be executed, while judges, juries and prosecutors have turned increasingly to life sentences without the possibility of parole.
• Just last month, both the American Pharmacists Association and the International Academy of Compounding Pharmacists discouraged their members from participating in the process. The U.S. group called it “fundamentally contrary to the role of pharmacists as providers of health care.”
• The difficulties involved in lethal injections are forcing states with capital punishment laws to rejuvenate backup methods once viewed as beyond the pale. Tennessee would allow electrocution, Utah death by firing squad. Now Oklahoma lawmakers are moving toward legalizing the use of nitrogen gas.
“The lethal injection issues are coming at a critical juncture,” says Robert Dunham, executive director of the Death Penalty Information Center. Capital punishment is declining, he notes, “judicially, legislatively and as a matter of practice – all at the same time.”
‘OUR BUSINESS IS IN HEALING’
There is good reason to believe the Supreme Court won’t help that trend April 29 when it considers Glossip v. Gross — a case called Warner v. Gross until the justices refused to stop Charles Warner’s lethal injection in January.
Despite its rulings abolishing the death penalty for people with intellectual disabilities in 2002 and for juveniles younger than 18 in 2005, the conservative-leaning court has shown little inclination to move much further. Only four votes were needed to accept the Oklahoma case. Only the use of midazolam as part of a three-drug protocol is in jeopardy.
That’s not the same three-drug protocol the court upheld in Baze v. Rees, the 2008 Kentucky case that upheld the method of lethal injection used in most states at the time. Midazolam was implicated in three botched executions last year in Ohio, Oklahoma and Arizona, where prisoners gasped, groaned and snorted before succumbing.
Although Florida and Oklahoma used that protocol successfully in January, Texas and Missouri have had fewer problems with pentobarbital. The problem is in getting a reliable supply of any lethal injection drugs following the European Union’s export ban in 2011.
States that have turned to compounding pharmacies for their drugs are running into increased resistance — for good reason, says David Miller, executive vice president of the International Academy of Compounding Pharmacists.
“As a pharmacist, I was trained to take care of people,” Miller says. “This is not our business. Our business is in healing.”
The court will hear the challenge from Richard Glossip, John Grant and Benjamin Cole, whose executions had been scheduled for January, February and March. Glossip was convicted of paying another man to kill the owner of the Oklahoma City budget motel where he worked as manager. He has long declared his innocence.
The battle lines in Oklahoma are clear. The state, which not only agreed to postpone those executions but asked the court to do so, hopes for a clear victory.
“The families of the victims in these three cases have waited a combined 48 years for the sentences of these heinous crimes to be carried out,” Attorney General Scott Pruitt has said.
The best that death penalty opponents likely can hope for is a narrow decision restricting the use of midazolam.
“I do not think the court is going to open the Pandora’s box to broader discussions about the nature of lethal injection as a broad topic or the death penalty in general,” says Rick Halperin, director of the Human Rights Education Program at Texas’ Southern Methodist University.
NO LONGER ‘BUSINESS AS USUAL’
While Oklahoma waits to execute more prisoners — along with states such as Ohio, where Gov. John Kasich has postponed all executions because of a drug shortage — Texas executions continue apace.
Since the death penalty was reinstated in 1976, Texas has executed more criminals than the next six states combined — Oklahoma, Virginia, Florida, Missouri, Georgia and Alabama. Four executions have been performed already this year; four more are set for this month.
Even by Lone Star State standards, Sprouse’s crime was horrendous. He was convicted in 2004 of shooting to death a police officer and an innocent bystander at a gas station two years earlier. His conviction was upheld by a federal appeals court in 2007.
In recent years, however, Texas has shown a decline in the number of death sentences imposed, death row inmates housed and prisoners executed. A confluence of factors has contributed, ranging from the risk of executing innocent people to the cost of capital punishment proceedings and the availability of life imprisonment without parole.
“There are undeniable signs across the spectrum that America is having doubts about the death penalty, for a whole gamut of reasons,” says Maurie Levin, a Texas lawyer who regularly represents capital defendants and has two lawsuits pending against the state. “Even though Texas has managed to continue to carry out executions, it’s a mistake to think it’s business as usual.”
Thus far, the drug shortage hasn’t brought Texas executions to the standstill that has hit other states. It announced in March that it had obtained enough to get through this month’s executions. But supplies are drying up everywhere.
“Since 2011, it has become increasingly difficult to purchase drugs used in the lethal injection process,” says Jason Clark, spokesman for the state Department of Criminal Justice. “The agency is exploring all options, including the continued use of pentobarbital or other drugs.”
The drug shortage doesn’t win much sympathy from the people who stand vigil outside Huntsville’s “Walls Unit” during each evening execution. They will be there again Thursday night, barring a last-minute postponement — most likely opposite a group of death penalty proponents supporting the execution of a convicted cop-killer.
“I wish that I thought we were at a turning point,” says Cheryl Smith, minister of Wesley Memorial United Methodist Church in Huntsville, who attends every vigil she can. “I don’t know that it will ever come in Texas, unless it comes from the Supreme Court. There is a point of pride here in Texas about being tough on crime.”
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