Alabama, Mississippi Take Preparatory Steps to Resume Executions

Alabama and Mississippi have under­tak­en prepara­to­ry steps towards resum­ing exe­cu­tions in the face of con­tin­u­ing legal chal­lenges to their meth­ods of execution. 

On August 2, 2021, Alabama’s Department of Corrections (ADOC) noti­fied a fed­er­al judge that it had ​“com­plet­ed the ini­tial phys­i­cal build on the nitro­gen hypox­ia sys­tem” that would use nitro­gen hypox­ia to kill pris­on­ers. The method is untest­ed, and the state also indi­cat­ed in its fil­ing that it had yet to devel­op an exe­cu­tion pro­to­col for the method. The fil­ing came in a case in which death-row pris­on­er Charles Burton has chal­lenged Alabama’s refusal to allow his spir­i­tu­al advi­sor to accom­pa­ny­ing him to the exe­cu­tion cham­ber to pro­vide religious support.

In a sta­tus report filed in Burton’s case, the Alabama Attorney General’s office said that a safe­ty expert had vis­it­ed the prison ​“to eval­u­ate the sys­tem.” ​“As a result of the vis­it,” state pros­e­cu­tors wrote, ​“the ADOC is con­sid­er­ing cer­tain addi­tion­al health and safe­ty mea­sures.” Claiming ​“secu­ri­ty con­cerns,” ADOC refused a request from Associated Press to pro­vide any details of the ​“ini­tial phys­i­cal build of the nitro­gen hypox­ia sys­tem” it intends to use to car­ry out the exe­cu­tions. ADOC still has not indi­cat­ed whether it is con­struct­ing a sep­a­rate exe­cu­tion cham­ber for gas exe­cu­tions or is build­ing a nitro­gen-hypox­ia appa­ra­tus for use in the state’s cur­rent death chamber.

On July 29, 2021, lawyers for the Mississippi Department of Corrections (MDOC) said in court papers filed in a fed­er­al law­suit chal­leng­ing the con­sti­tu­tion­al­i­ty of the state’s exe­cu­tion process that the state had acquired the seda­tive mida­zo­lam, the par­a­lyt­ic drug vecuro­ni­um bro­mide, and the heart-stop­ping drug potas­si­um chlo­ride for use in lethal-injec­tion exe­cu­tions. MDOC did not dis­close where or from whom the state obtained the drugs, the man­u­fac­tur­er of the drugs, or details about the drugs them­selves, such as their expi­ra­tion date, how many dos­es were acquired, how much the drugs cost, and whether the drugs were mass pro­duced by a phar­ma­ceu­ti­cal com­pa­ny or indi­vid­u­al­ly pre­pared by a compounding pharmacy. 

Alabama passed a law in March 2018 autho­riz­ing the use of nitro­gen gas as an alter­na­tive method of exe­cu­tion. It is one of three states, along with Oklahoma and Mississippi, that autho­rize nitro­gen hypox­ia as an exe­cu­tion method. In a nitro­gen hypox­ia exe­cu­tion, the pris­on­er would breathe pure nitro­gen, depriv­ing his or her body of oxy­gen and caus­ing asphyx­i­a­tion. Its pro­po­nents argue it is a more humane method of exe­cu­tion, but it can­not eth­i­cal­ly be tested.

“In a very real sense, exe­cu­tion by nitro­gen hypox­ia is exper­i­men­tal,” DPIC Executive Director Robert Dunham told Newsweek when the state announced in ear­ly June 2021 that it was close to final­iz­ing the nitro­gen hypox­ia method. ​“It has nev­er been done before and no one has any idea whether it is going to work the way its pro­po­nents say it will. And there is no way to test it because it is com­plete­ly uneth­i­cal to exper­i­men­tal­ly kill some­one against their will.”

Mississippi, like many oth­er death-penal­ty states in the U.S., has had trou­ble locat­ing and buy­ing lethal-injec­tion drugs as phar­ma­ceu­ti­cal com­pa­nies across the world have become increas­ing­ly against the usage of their drugs in exe­cu­tions. U.S. phar­ma­ceu­ti­cal com­pa­nies have uni­form­ly refused to sell their med­i­cines to states for use in exe­cu­tions, have adopt­ed dis­tri­b­u­tion con­trols to pre­vent their sup­pli­ers from doing so, and have sued states when they have learned that their drugs were obtained by sub­terfuge and mis­ap­pro­pri­at­ed for use in executions. 

Midazolam, a seda­tive used in pro­ce­dures like colono­scopies, tooth extrac­tions, and car­diac catheter­i­za­tions, has been impli­cat­ed in prob­lem­at­ic exe­cu­tions across the United States, includ­ing Alabama, Arizona, Arkansas, Ohio, and Oklahoma. The three-drug cock­tail with mida­zo­lam, a par­a­lyt­ic drug, and potas­si­um chlo­ride has been described by a fed­er­al court as pro­duc­ing a sen­sa­tion akin to expe­ri­enc­ing a com­bi­na­tion of water­board­ing, suf­fo­ca­tion, and chem­i­cal fire. The Mississippi death-row pris­on­ers’ law­suit alleges that that using com­pound­ed drugs ​“sub­stan­tial­ly risks that [they] may be con­scious through­out their exe­cu­tions and will expe­ri­ence a tor­tur­ous death by suf­fo­ca­tion and cardiac arrest.” 

Compounding phar­ma­cies com­bine, mix, or alter drugs to meet the spe­cif­ic needs of an indi­vid­ual patient when mass man­u­fac­tured drugs are not avail­able for the patient’s med­ical con­di­tion or the patient is unable, for rea­sons such as aller­gies or drug intol­er­ance, to take com­mer­cial­ly avail­able med­i­cines. Compounded drugs may law­ful­ly be pro­duced and dis­pensed only pur­suant to a valid med­ical pre­scrip­tion. However, the Food and Drug Administration (FDA) warns that com­pound­ed drugs are not sub­ject to the FDA’s pre-approval over­sight and that ​“poor com­pound­ing prac­tices can result in seri­ous drug qual­i­ty prob­lems, such as con­t­a­m­i­na­tion or med­ica­tions that do not pos­sess the strength, qual­i­ty, and puri­ty they are sup­posed to have.” 

As with asso­ci­a­tions of oth­er med­ical pro­fes­sion­als, the major pro­fes­sion­al asso­ci­a­tions for phar­ma­cists — the American Pharmacists Association and the Alliance for Pharmacy Compounding (for­mer­ly, the International Academy of Compounding Pharmacies) — oppose their mem­bers’ par­tic­i­pa­tion in exe­cu­tions. A num­ber of com­pound­ing phar­ma­cies that have pro­vid­ed exe­cu­tion drugs to states have been impli­cat­ed in seri­ous health, safe­ty, and oth­er vio­la­tions.