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Despite Protest from Johnson & Johnson, Florida Executes Man Using Untested Drug Cocktail

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Florida has executed a 53-year-old man, convicted of killing two men in 1987, by lethal injection. The execution, performed on Thursday evening, involved the use of a powerful chemical never before used in a U.S. execution. The anesthetic drug etomidate was developed by a division of Johnson & Johnson called Janssen, and has been criticized as being unproven in an execution. In response, the Johnson & Johnson division said, “We do not condone the use of our medicines in lethal injections for capital punishment.” Johnson & Johnson has joined a chorus of pharmaceutical companies that have spoken out against the use of their medicines in U.S. executions. After European pharmaceutical companies began refusing to sell drugs to be used in executions, many states turned to untested drug combinations and drugs sourced through unconventional means. The controversial formulas used may have subjected at least one prisoner to an excruciating death equivalent to drowning. We speak with Maya Foa, director of the international legal charity Reprieve, which campaigns against the death penalty.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We turn now to look at what took place in Florida last night. On Thursday evening, the state of Florida executed a 53-year-old man, convicted of killing two men in 1987, by lethal injection. According to officials, Mark James Asay was pronounced dead at 6:22 p.m. The execution protocol, which began at 6:10 p.m., included a drug never before used in a U.S. execution. The anesthetic drug etomidate was developed by a division of Johnson & Johnson called Janssen, and has been criticized as being unproven in an execution. In response, the Johnson & Johnson division wrote, quote, “We do not condone the use of our medicines in lethal injections for capital punishment.” Etomidate replaced midazolam, which has been used in multiple botched executions. Johnson & Johnson joined a chorus of drug companies that have taken steps to prevent their medicines from being used in U.S. executions. After European pharmaceutical companies began refusing to sell drugs to be used in executions, many states turned to untested drug combinations and drugs sourced through unconventional means. The controversial lethal injection formulas used may have subjected at least one prisoner to an excruciating death equivalent to drowning.

Mark James Asay, who’s a white supremacist with swastika tattoos, was the first white man to be put to death in Florida for killing a black man since Florida reinstituted the death penalty in 1979. Executions in Florida were put on hold after the Supreme Court ruled that the old system was unconstitutional because it gave judges, not juries, the power to decide. Since then, Florida’s Legislature passed a law requiring a unanimous jury for death penalty recommendations. Jurors recommended Asay for the death penalty by a vote of 9 to 3. Florida ruled the Supreme Court’s ruling did not apply to older cases. Asay was the 24th prisoner executed under Florida Governor Rick Scott, the most under any Florida governor.

Well, for more, we go to London, England, where we’re joined by Maya Foa. She’s director of international legal charity Reprieve.

Maya, welcome back to Democracy Now! Can you talk about this execution, what took place and the drugs that were used?

MAYA FOA: Yes. Well, this was the first time ever that that particular cocktail of drugs, etomidate plus a paralytic agent and then the drug potassium acetate, had been used in an execution anywhere in the world. And it was chosen amid really vocal concerns by numerous pharmaceutical manufacturers, distributors, healthcare professionals, people across the spectrum, including, last week, Johnson & Johnson company, which developed, designed etomidate in the first place. And they felt the need to speak out and say, “We didn’t make it for this purpose. This is an inappropriate use.” Experts have said that this is the riskiest protocol they have ever seen.

So, the first execution took place last night. We really don’t know how it went. And as one of the fundamental problems with the lethal injection is that so much of the design of the cocktail, whether it be the cocktail they used in the '70s or the cocktails they're now turning to, the design contains this paralytic agent, which is there purely for a cosmetic purpose, purely so that we, the spectators, anybody watching the execution trying to establish what’s really going on, are unable to see whether there has been pain and suffering. The inmate is paralyzed. Their voluntary muscles are paralyzed. So they can’t shout out, if, as we fear happens a lot, the first drug doesn’t anesthetize the prisoner. So, he or she is awake. They are strapped to the gurney as the third drug, a powerful acid that the Supreme Court has said said would be unconstitutional to use if the inmate were not properly anesthetized, is administered. It’s like—Justice Sotomayor compared it to having—being burnt alive at the stake from the inside, chemical being burnt alive at the stake.

AMY GOODMAN: So, you have been deeply involved now with trying to get particularly European companies to tell the United States they will not allow their drugs to be used to execute people. Explain the approach you’ve taken, how you have really led to the shortage of execution drugs in America.

MAYA FOA: Well, what’s interesting about the lethal injection is that, actually, manufacturers have never wanted their medicines used in executions. And that shouldn’t be a surprise to anyone. These companies make drugs to save and improve the lives and health of patients. So, what happened in 2010, when states began to run out of a particular drug, they moved over—they started to buy drugs from a driving school in London. So, at that stage, I started to look into the supply chain and realized very quickly that the companies who—the legitimate manufacturers who are making these products do not want them used to kill prisoners—and not just to kill prisoners, but sometimes to torture and end the lives of prisoners. So, what we have done, what I have done, working with companies, now over 30 global manufacturers, is work together with them to help them protect their medicines from this lethal misuse.

You imagine, you’re a company. You make medicines that are designed to advance wellness, to improve lives, to save lives. And you have states who are diverting your products, against your will—and you’ve said many, many times—this has been going on for decades—you’ve said many times you don’t want your drugs used for this purpose. They divert the drugs. They use them to sometimes torture and kill prisoners. And that is not only bad for you in corporate terms, in commercial terms. You risk legal liability, and it’s fundamentally opposite to what you’ve spent your entire time—you’ve got scientists, you’ve got doctors, you’ve got people working in this company to make products to save lives. So, I have helped scores of companies design distribution controls that enable them to direct where the drugs go, so that they go to legitimate medical users of the drugs—hospitals, acute care facilities—and that they’re not diverted to prisons who use those medicines to torture and kill prisoners.

AMY GOODMAN: So, talk about some of those companies—for example, Lundbeck.

MAYA FOA: Lundbeck was a company—is a company that makes pentobarbital—made pentobarbital. And they were deeply opposed to the use of their medicines in executions. This was around 2011, when states started to move to pentobarbital because there was a shortage, a domestic shortage, of sodium thiopental. Lundbeck said, from the outset, “We don’t want our drugs used in executions,” and then, over the course of a few months, designed and implemented distribution controls to prevent their drugs being used to kill prisoners in Texas, Missouri and elsewhere. They were aware that this drug, pentobarbital—again, an experimental new drug. It hadn’t been used in executions before. The combination, the way in which it was being used in certain states, you would not even have been allowed to do that to an animal. The American Veterinary Medical Association forbids the use of these combinations of drugs, including the paralytic agent that I mentioned, to euthanize animals. And yet, states were saying that this was the appropriate way to end the lives of prisoners on death row.

So Lundbeck put in place the controls. They announced them in July of 2011. And states that had a supply of pentobarbital used that supply for a couple of years, until the drugs expired. The drugs expired, all of them, in 2013. And because the controls have been effective, states haven’t been able to get pentobarbital anymore, and that’s why we started to see the changes to new protocols. Our concern, of course, is that these new protocols are not better or safer or more efficacious or more pleasing to the industry than any of the other protocols. And really what we should be seeing is state agencies heeding the increasingly vocal and numerous calls and aggressive calls from the industry saying, “We don’t want these medicines used in this way.” And they should be respecting the interests of business, and they should be moving away from this misuse—you know, this lethal misuse of medicines.

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