Raymond Bonner, a former foreign correspondent and investigative reporter for the New York Times, is author of Anatomy of Injustice: A Murder Case Gone Wrong. This article was published in partnership with ProPublica.

Lawyers for the State of Oklahoma will tell the Supreme Court justices on Wednesday that the cocktail of drugs the state uses to execute convicted murderers does not subject them to “cruel and unusual” punishment, which is proscribed by the Constitution. Indeed, the State says it has long been the leader in efforts to find a “more humane alternative to electrocution”—which in turn was considered more humane than hanging, which was considered more humane than execution by a firing squad.

Three convicted murderers, whose executions have been stayed by the Court pending a decision on the merits in the case, Glossip v Gross, say there is nothing humane at all about Oklahoma’s current lethal injection protocol. They argue that the anesthetic the state uses creates a substantial risk they will suffer “severe pain, needless suffering and a lingering death.”


The case has landed in the Supreme Court because the anesthetics Oklahoma used for more than thirty years without incident—in the execution of 104 men and six women—are no longer available. And for this, Oklahoma posits a striking and novel thesis: the responsibility lies with death penalty abolitionists.

Last year when Oklahoma found itself unable to obtain the anesthetics it had long-used, the Department of Corrections experimented with a new one, midazolam, when it executed Clayton Lockett, who was convicted of the rape and murder of a nineteen-year-old woman. After being injected with the anesthetic, which is supposed to render the condemned insensate so he doesn’t feel anything when the next drugs are dripped into his veins, Lockett, began writhing, moaning, kicking his leg, twitching. It took him 43 minutes to die.

Even before summarizing the evidence that midazolam is safe and effective, Oklahoma argues that it was forced to use it because of a campaign by death penalty abolitionists. They have “pressured manufacturers” of previously used anesthetics “to cut off supplies to the States,” Oklahoma declares in the first paragraphs of its eighty-two-page brief.

It is not clear how, as a matter of constitutional law, the Supreme Court justices will view the reasons why Oklahoma uses midazolam, and in its brief the State cites no authority for the proposition that actions of death penalty opponents renders the use of the protocol constitutional. If the current protocol does in fact subject the condemned to suffer undue pain, is it constitutionally relevant why the state used it?

But there is some truth to the state’s contention that death penalty opponents have played an active role in the resulting shortage of lethal injection drugs. Using adverse publicity, lawsuits and lobbying, lawyers representing death row inmates and anti-death penalty organizations have persuaded pharmaceutical companies not to supply drugs for capital punishment.

Regardless of how the Court rules in Glossip, the contentious debate about the death penalty will continue—no one expects the Supreme Court as currently constituted to rule outright that the death penalty is unconstitutional, even as it goes about limiting the methods that can be used. Most of the campaigns against capital punishment will be waged outside the courts. Some will focus on pharmaceutical companies, but as they are successful, states will adopt other methods. Utah has already said it will use the firing squad.

Liberal abolitionists may find some surprising support from political conservatives, who capital punishment has simply become too expensive, in part because of the lengthy appeals process, which are designed to guard against executing someone who is innocent. California, which has the largest death row population, spends $90,000 more per inmate on death row than on one in the normal prison population, according to a study three years ago when the state came close to repealing capital punishment in a referendum. Last week, Nebraska’s Republican legislature voted to repeal capital punishment, and one of the arguments was that it was too costly.

Lethal injection was first proposed in the 19th Century by a New York doctor who argued it would be cheaper than hanging. Britain rejected it because of opposition from the British Medical Society. (In the 1960s, Britain abolished capital punishment altogether, even though polls showed a majority of the public supported it.) By the 1980s, the three-drug protocol developed by Oklahoma had been adopted by virtually all capital punishment states.

Lawyers for death row inmates won some lower court victories with the argument that lethal injection would inflict unnecessary pain and suffering and was therefore proscribed by the Eighth Amendment ban on “cruel and unusual punishments.” But in 2008, the Supreme Court ruled otherwise, in a case out of Kentucky, Baze v Rees.

“The firing squad, hanging, the electric chair and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection,” Chief Justice John Roberts wrote for the plurality. (Only Justices Ruth Ginsburg and David Souter dissented).

But the Court did not give blanket approval to lethal injection. The most critical drug is the anesthetic, the Court recognized. “It is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is substantial, unconstitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride,” Roberts wrote. (Pancuronium paralyzes the diaphragm and lungs; potassium chloride induces cardiac arrest).

The problems for the states began when the only approved supplier of sodium thiopental, Hospira, ceased production because of difficulties in the manufacturing process.

Looking for other sources of the drug, death penalty states found a small wholesaler in Britain, Dream Pharma, which operated out of the back of driving school in London. Acting quickly, a relatively small human rights organization in London, called Reprieve, effectively shut it down, using adverse publicity, and appeals to the British government, which has since banned the export of any drug to the U.S. for use in executions. The organization also succeeded in closing a supplier in India.

With the supply of sodium thiopental cut off, Oklahoma turned to pentobarbital as the anesthetic, and other death penalty states once again followed its lead.

Only one company had FDA approval to sell pentobarbital in the United States—Lundbeck, Inc., which is headquartered in Denmark.

Representatives from Reprieve and prominent American death penalty lawyers met with Lundbeck executives and urged them to not let is drug be used for executions. Lundbeck, whose pentobarbital sold under the trade name Nembutal and was used for treating epilepsy, was sympathetic, to a point. The company wrote to prison officials in Oklahoma, and Ohio, which had also purchased the drug, that the company was “adamantly opposed” to any of its products being used for the purpose of capital punishment. “We urge you to discontinue the use of Nembutal in the execution of prisoners in your state because it contradicts everything we are in business to do—provide therapies that improve people’s lives.”

Neither state replied to the letter, and both went ahead with executions using the Lundbeck drug.

Lundbeck said it couldn’t do any more than plead because it didn’t sell directly to prison authorities and it had no control of what happened to its drug after it was sold to wholesalers or distributors.

Pressure on Lundbeck mounted. Denmark abolished capital punishment in 1950, and most of Lundbeck employees were not happy with the company’s position. A pension fund sold its shares, causing a big drop in the stock price. The company’s reputation suffered as well.

Eventually, Lundbeck, working with Reprieve, came up with a new distribution system, which, as the company explained in a press release, “will deny distribution of the product to prisons in U.S. states currently active in carrying out the death penalty by lethal injection.”

It was a landmark development. No longer would pharmaceutical companies be able to argue that they could not stop their drugs from being used in executions.

Several major pharmaceutical companies followed Lundbeck’s example, as states have scrambled to find alternative anesthetics. Last month, a manufacturer of midazolam, Akorn, issued a statement that it “strongly objects to the use of its products in capital punishment.” As had Lundbeck, it said it was instituting distribution controls “to keep the products out of prison systems.”

One of the world’s largest pharmaceutical companies, Roche, headquartered in Switzerland, has said that it did not supply midazolam for death penalty use. “We support worldwide ban on the death penalty,” the company said in a statement in January.

While Oklahoma points an accusing finger at death penalty abolitionists, it has refrained from criticizing the large pharmaceutical companies.

The European Union, which is America’s fourth largest trading partner, has also been a significant factor in the predicament that death penalty states now find themselves. The EU, which “disapproves of capital punishment in all circumstances and works toward its universal abolition,” has banned European companies from exporting drugs if they are to be used in executions. Reflecting just how strongly the EU feels about capital punishment, the ban is contained in a law regulating trade in all goods that “could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.” And the list of banned exports includes “gallows or guillotines;” electric chairs “for the purpose of execution of human beings;” and “air-tight vaults, made of, e.g., steel and glass, designed for the execution of human beings by the administration of a lethal chemical substance.”

Recognizing the possibility that it might lose in the Supreme Court, or that even if it wins, it might not be able to get the drugs it needs for executions, Oklahoma passed a law earlier this month that will allow it to carry out executions with nitrogen gas.