Plus C’ est la Meme Chose, Plus Ca Change

There are strange developments afoot in the clumsy, twisted, atavistic world of state-sanctioned murder. You deserve a better, less caustically acerbic guide through all of this clutter than I, but I couldn’t find anyone more suited on short notice. I almost had Virgil on board, but he decided after consideration that giving his occasional tours through hell was less demanding. Go figure. I’d trade positions with him in a heartbeat. At least he has most of the interesting people who ever lived to chat with.

Anyways, over the past year, something unforeseen, something new has been brewing in the tepid, festering bog that is my world. Ever since the death penalty was reinstated, the abolitionist cognoscenti have debated about when and how the final nail might be inserted into the coffin of this system. There are effectively two camps. The first is what I like to call the “evolving standards of decency” lot. They view legalized homicide as a moral no-no, and think that once the public is made aware of the teachings of X (Jesus, the Buddha, The Flying Spaghetti Monster, whoever; insert your favorite ethical guru here at your leisure), they will decide that modern nations ought not to have the power of eliminating its own citizens. I like these people. I used to be one of them. I don’t think they are wrong, exactly. The world really is growing up, bit by painful bit, tossing out the stale, worm-eaten traditions left to us from the days of humanity’s fitful childhood. My issue with this crowd is one of velocity: when you look at human history, the quickest and most effective way to change the character of the mobile vulgus is to impose order on it from the top down, not the reverse. Left to its own devices, its “freedoms.” the mob seldom acts ethically. That’s why we have laws.

That’s the second crowd, the people who think that a landmark supreme court case will eventually rule the death penalty a violation of the 8th Amendment, We had a shot at such a ruling a few years back when Baze v Rees hit the SCOTUS, but the suit failed because Kentucky was one of the worst states in the nation to try to prove that hey had botched an execution. (Had the suit come from Florida or Ohio, the death penalty may very well be extinct today.) The argument here is that in some cases, the vox populi doesn’t know what it is about, and wiser, cooler heads must intervene. A good example of this is the tact taken by Dr Martin Luther King Jr during the civil rights movement. Most Americans felt that it was morally acceptable to negate the rights of an entire class of people based on their having had the poor taste to have lost the genetic lottery and been born black. The pundits of the day claimed that morality was going to shift, eventually, and that in any case “you cannot legislate morality.” Beliefs and attitudes had to change first, and then behavior would eventually follow. King knew what William James knew: when you act as if a thing is real, it eventually becomes real. Reality is socially constructed: what people believe to be real is real in its consequences. King changed the laws (which govern behavior), and since most people want to obey the laws, their actions were modified. A funny thing happened: by pretending that – hey, what do you know? – black people were, well, people, attitudes and beliefs shifted. Besides a few hardcore southern racists, no one today believes that the everyday, mundane discrimination of the 1950’s is socially acceptable. To wit: you change the laws, you change the thinking of the people.

I am a member of the latter group, though I will be the first to admit that abolitionists only win when both arguments are used in tandem. Look at Illinois: a tacit understanding that the law – even at the best of times, which seldom ever happens is imperfect melded with the moral argument against killing, and that state no longer has a death penalty system. Other states are moving in that direction. “Hold steady” seemed to be the battle cry in recent years. Same course. Full speed ahead. Then science got in the way. “Technical difficulties,” if you like, at least from the position of the states who kill people in the name of trying to convince people not to kill people. You see, there has always been a problem at the center of the method of using complex chemicals to end life. Those chemicals aren’t made by the thugs who work in or run prisons. They are carefully constructed in expensive laboratories by smart people with PhDs. And these drugs, they weren’t made for this stuff. They were made to help people, not snuff them out. Most (if not all) of the makers of these products were very unhappy about having their inventions converted into a medicalized gibbet, but scientists are, by and large, a quiet crowd. So they didn’t make waves about the improper use of this stuff, at least not in numbers sufficient to deter its use. And somehow/the abolitionists failed to sense just what a weak point this was in the entire, global argument. Until now.

The first drug in the three drug cocktail used by most states used to be sodium thiopentol, a long-used and much tested short duration barbiturate. An old drug, hospitals seldom use it anymore, save for in odd cases where patients react negatively to newer, more advanced anesthetics. There was only one manufacturer of this drug in the states, Hospira. Well, they ran out of a vital chemical to manufacture this, and then decided not to ship it anymore to the states at all, due to the fact that their main customers were, well, prisons. There was also some pesky news from EUROPE, where abolitionists started barring sale of this drug to states. For the first time, a new specter coalesced in the arguments over the DP, the technical reality of not being able to kill people due to lack of supplies. Military tacticians and strategists have long known that one of the quickest ways to cripple an enemy is to cut off his supply line. Napoleon learned this the hard way. So did Hitler. My side seized on this and ran with it. I laughed, for a good long time. Surely, I thought, someone else will simply step up and start making more of this stuff. Seriously. Still, what a nice little development.

The news got progressively better, or worse, depending on your view of government. As states thrashed about, jonesing for more junk, suppliers began rejecting their advances. A firm in INDIA decided against selling their sodium thiopentol to states, and these same states then started to really freak out. Executions were postponed. New drugs were looked at. Then, states did what all other junkies do when their dealers get arrested: they found alternate sources on the black market.

One of the more popular of these was Dream Pharma, the Most Highly Respected Pharmaceutical Supplier in the World Housed in the Backroom Closet of a Driving School. You can see a photo of this altered state Mecca here:

Several states illegally smuggled this drug in, and, whew, criminals started dying again, even though this thiopentol was years beyond its shelf-life expiration dates. Because, I mean, these are criminals here. Who cares if the drugs work right, so long as their cold-blooded little hearts stop beating eventually, right? Then those communist, devil-worshipping, freedom-hating bastards in the federal government stepped in and seized the bad drugs, ostensibly because, well, state governments shouldn’t be acting like crackheads. Or maybe it was because Uncle Sam himself had run out of sodium thiopentol too. Whatever the reason, states were left to wallow in the mud of their creation without any killing juice.

Texas had about a gazillion doses left, of course, because they buy in bulk. Thus, they were not affected by most of this mess. Other states begged for a few hits – c’mon, man, just a few hits, I’m hurtin’ bro! – but Texas wasn’t going to let a few whining neighbors interfere with its killin’. The fact that the Lone Star crew had all of this thiopental finally caused some people in calmer quarters to collectively scratch their heads. “Investigations” began, and, hey, what do you know, things really can get worse than having your government skulking around London’s underworld in search at better dope. In order to purchase a drug like thiopentol, one must be licensed. Specifically, it is the Drug Enforcement Agency that issues the necessary registration certificates, the same DEA who permitted states to import expired thiopental (and then confiscated it) in the first place. Texas, it seems, couldn’t be bothered to comply with the law on an issue like this. Instead, Texas used a DEA registration number assigned to the system’s HUNTSVILLE UNIT HOSPITAL, which is closed. Since 1983. Which means that nearly all of the 470-ish men legally murdered by this state were killed with illegally purchased smack, and not that it matters to any of the deceased (or to any of you, apparently, since this story produced precisely zero public outrage), but TDCJ also failed to follow the law and store these drugs in either a pharmacy or a DEA-approved handling facility, Whoops. Naughty rednecks, converting the state into the Lone Star Cartel. But, hey, if nobody cares about a violation of a law, is it really a violation: In the end, the more active death penalty states had little choice but to swap drugs. The anesthetic eventually selected for this ignoble end was pentobarbital, marketed as Nembutal, a drug designed for serious epilepsy, incidentally. The manufacturer of Nembutal is Lundbeck Pharmaceuticals, based in Denmark. Denmark is a staunchly anti-DP nation, as are all of the members of the European Union. As states began using their product, REPRIEVE went on the offensive, petitioning Lundbeck relentlessly to stop selling their drug in the US. Every time someone was executed, they put out press releases. Things got ugly. For their part, various figureheads within the company put together nicely worded press releases about how much they all regretted how those barbaric Americans were misusing their product, but their hands were tied. They didn’t sell anything directly, you see. They sold through suppliers, over whom they had no control. Reprieve was not impressed, and neither was Human Rights Watch and Amnesty International, who joined in the fray. Hedge fund managers and individual stockholders began dumping Lundbeck stock, and the company president was called in to manage the spin. Can you guess how this story ends? Of course you can: as of this week, Lundbeck will now institute some form of end-user certificate program with the three distributors of this drug in the US, designed to prevent sale of Nembutol to state governments. Reprieve fired a last salvo, making sure everyone else in the business knew that a similar fate awaited anyone that attempted to fill in the gaps. Not bad for a bunch of liberal pansies, eh?

So, now we are back to square one. Some states have plenty of Nembutol, and several years to use it before it expires. (Texas, for instance, has something like 10 men with dates in the next 3 months, all set to die with Lundbeck drugs.) The company did send out a letter to the states, informing them that they were using the drug improperly. This may end up playing a role in legal challenges to the use of Nembutol in executions. (Improper use is an argument that could not be leveled against sodium thiopentol, which really was designed to induce anesthesia, and which had plenty of history doing just that. It is quite a different thing to call an improperly used, untested drug constitutional.)

The states which did not have the prescience to buy a truckload of the stuff early in the game are now in the position of being able to hand out death sentences by the dozens, but no way to implement the orders of the court. For some of these states, this may prove to be the final, long-delayed straw that breaks the camel’s back. For the death penalty cheerleader states (pretty much everyone in the south, plus Ohio, the Texas-wanna-be of the midwest), a new set of headaches might commence, if no other source of the drug can be located (in China, say). Hanging? Gas chamber? Electric chair? Firing squad? Guillotine? Hell, why not do executions in the town square again. The sacrificial altars to lex talionis have not been wetted with the blood of the guilty (or the not-so-guilty, as the case may be) in this nation for a long spell; why not bring all of that back, too?

They wont, of course. They can’t. It’s not a tragedy if there’s no blood on the floor, and they need you, the public, to see these deaths as something less than death. Start lopping off heads, and it gets just a little too real for everybody involved, even people who technically support capital punishment. “Succored” and “suckered” blend softly casual on this issue, and that blending can only happen when our killings are done in a nice, sterilized, private room in Bumsfuckville, Texas, miles from anything important. Even most at you pro-DP zealots know full well that if they start erecting scaffolds in your front yard, your enthusiasm for all of this would fade away. Once it moves from a theoretical topic to be discussed in the comfort of your living room to an oh-shit-this-stuff-is-for-real issue, attitudes change.

In the end, the “technical difficulties” argument gives support to both sides of the abolition movement, even if neither side really saw it coming, I constantly find myself bemoaning the fact that we don’t seem to make anything in America anymore, besides crackpot End Times fanatics and Global Warming Deniers. I never thought that I would live to see the day where America couldn’t even do its own killing anymore. For the one and only time in my life, I can say, without shame, three cheers for outsourcing!

– NY State Senator James H Donovan