Capital punishment sets the U.S. apart from all other developed democracies but one: Japan. The U.S. ranked fifth in number of executions in 2015, behind China, Iran, Pakistan and Saudi Arabia. In recent years, pharmaceutical companies have made it harder for officials in the U.S. to carry out executions by refusing to supply the drugs commonly used in them. That has forced the 31 death-penalty states to find new sources and types of lethal drugs. The result: Three botched executions in 2014 that raised the question of whether the U.S. is running out of acceptable ways to kill people.
In 2016, Pfizer, the biggest U.S. drugmaker, introduced a policy designed to keep its products from being used in lethal injections. That meant all 25 companies whose federally approved drugs might be used in executions have blocked their sale for that purpose, according to the anti-death penalty group Reprieve. The drugmaker restrictions have prompted states to vary from a once-standard three-drug formula. Some have bought the seizure treatment pentobarbital from compounding pharmacies, custom drugmakers whose products and manufacturing quality don’t require Food and Drug Administration approval. In 2014, the sedative midazolam was used in three problematic executions, in which inmates writhed, groaned or gasped for air, and took as long as two hours to die. In June 2015, a divided U.S. Supreme Court upheld the use of the drug, rejecting arguments that it puts inmates at risk of a painful death. Two dissenting justices said for the first time that it’s “highly likely” the death penalty is unconstitutional. The majority’s ruling notwithstanding, supply problems are forcing execution delays and moves toward alternatives to lethal injection. Ohio has postponed all executions because of difficulties obtaining lethal-injection drugs. If such drugs aren’t available, Utah now allows execution by firing squad and Oklahoma has approved using nitrogen gas, an untested method.
More than two-thirds of countries have abolished the death penalty legally or in practice. The U.S. Supreme Court suspended capital punishment in 1972, ruling that it was applied arbitrarily, but reinstated it in 1976. Since then, a handful of U.S. states have abolished it — Nebraska did so in mid-2015; Connecticut’s top court ruled that it was unconstitutional in August, 2015. The Supreme Court has effectively restricted its use to murder cases and barred it for juveniles and the mentally disabled. Hanging, firing squads, the electric chair and the gas chamber have all given way to procedures seen as more humane. Lethal injection, introduced in 1982, is now the sole or primary method in all the 31 states. In 2008, the Supreme Court upheld the three-drug protocol, saying adequate safeguards ensured inmates don’t endure significant pain. Other countries known to have practiced lethal injection are China, Thailand, Guatemala and Vietnam, which has also had trouble sourcing reliable drugs.
The lethal injection debate has become a proxy for the broader fight over the death penalty’s fairness and effectiveness. The bungled executions have provided new legal ammunition for opponents, who say lethal injection is now so risky it violates the constitutional ban on cruel and unusual punishments. In particular, they question the effects of midazolam as well as the credentials of both the drugmakers who supply lethal drugs and the prison officials who administer them. Their identities are generally kept secret. At a minimum, critics say, the Constitution requires states to provide such details so the public can have an informed debate about whether lethal injection is cruel and unusual and inmates can mount a knowledgeable legal challenge. The 9th U.S. Circuit Court of Appeals stayed Joseph Wood’s execution in Arizona on those grounds in mid-2014, but the Supreme Court set aside the decision. Supporters of capital punishment note that the Supreme Court ruled that a procedure violates the prohibition on cruel and unusual punishments only when a feasible alternative significantly reduces the risk of severe pain. Opponents of lethal injection haven’t offered an alternative to it (they tend to support the death penalty’s abolition). Also, supporters say, as the Supreme Court has, some risk of pain is intrinsic to any execution.
The Reference Shelf
- The Death Penalty Information Center’s page on lethal injection.
- The Oklahoma Department of Public Safety report on the execution of Clayton Lockett.
- Professor Deborah Denno’s paper on the legal issues surrounding lethal injection.
- Scotusblog’s page on the 2008 Baze v. Rees Supreme Court case.
- The U.S. 9th Circuit Court of Appeals decision to stay Joseph Wood’s execution.
First published Jan. 12, 2015
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