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October 28, 2013

"No Drugs, No Executions: The End of the Death Penalty"

The title of this post is the headline of this lengthy new article in The National Journal.  The piece, which carries the sub-heading "As states scramble to find new cocktails of death, could a lack of options spell the end of capital punishment?," merits a full read. Here are a few excerpts:

On Oct. 15, Florida executed William Happ, a man who most agreed deserved little sympathy. Happ kidnapped 21-year-old Angela Crowley in 1986 from outside a convenience store in Crystal River and raped and strangled her before dumping her tormented body into the Cross Florida Barge Canal....

Happ died for his crimes committed 27 years ago. Like hundreds before him, Happ's death was administered through an intravenous injection of a lethal drug cocktail.  Like no one before him, Happ was injected with midazolam hydrochloride, a sedative that had never before been used for an execution in the United States.

Happ's execution reflects an American death-penalty system in crisis: States are running out of the drugs they rely on to carry out death sentences as alternatives for how to secure them quickly diminish.  And no one wants to innovate in the execution industry.  As the medical community works to distance itself from the science of killing people, states are attempting to forge a difficult road ahead, one fraught with litigation, international tension, and uncertainty....

Florida is just one of several states scrambling to update or refine its capital-punishment protocol amid a sudden shortfall of its lethal injection drugs, resulting in an unprecedented inconsistency in the way inmates are executed in the United States.  Even as a steady majority continues supporting the death penalty, the difficulty in obtaining new lethal drugs, associated legal hurdles, and a gaping void of better execution alternatives has left capital punishment in America with an uncertain future....

Eight days after Florida executed Happ, Missouri planned to put Allen Nicklasson to death with propofol. The anesthetic, which contributed to Michael Jackson's death by overdose in 2009, had also never been used before for a human execution.  But buckling from pressure from the medical community, which argued propofol could inflict inhumane levels of pain, Gov. Jay Nixon halted Nicklasson's execution to ensure "justice is served and public health is protected."  But a more practical matter was likely weighing on Nixon's mind: German manufacturer Fresenius Kabi had threatened to stop shipping propofol to the U.S. if the drug was allowed to be used for executions....

Doctors and researchers aren't exactly clamoring to develop new methods of killing people, and no one is advocating a regression to older forms of execution, like the electric chair or gas chamber.  But even if a new, cutting-edge technique was developed somewhere, that too would almost certainly provoke a torrent of litigation.

UPDATE: Just this afternoon, I saw this local story from my own Columbus Dispatch reporting that a "shortage of pentobarbital will force Ohio prisons officials to rely on two drugs they have never used before for the scheduled Nov. 14 execution of Ronald Phillips of Summit County."

Given Ohio's history with lethal injection litigation, I would expect there to be some court action concerning this development in the next few weeks.   Whether that court action is likely to delay any scheduled executions is hard for me to predict.

October 28, 2013 at 09:00 AM | Permalink


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Do any of you know what's been going on (if anything) with the federal death penalty Eighth Amendment lethal-injection litigation? Federal executions have been stayed since 2006.

Posted by: alpino | Oct 28, 2013 9:45:34 AM

Given the continued high support for execution in the US (and particularly in the states that actually carry through with those executions) I see continuing this particular line of games as one that will end in a return to other methods.

Most likely either hanging, or a new style gas chamber, one using nitrogen asphyxiation rather than traditional poisons. The latter method avoids the single major drawback of the traditional gas chamber in that unless conducted in an extremely careful manner it is also quite dangerous to the executioners.

Either that, or as SC says the matter will be taken out of FDA's hands and EPA or USDA will be given the power to regulate a few manufacturers as the makers of poisons rather than beneficial medications.

Posted by: Soronel Haetir | Oct 28, 2013 11:23:52 AM

Relatively speaking -- it still amounts to less than ten people -- 2013 has been a big year for executions in Florida given rates over the last decade.

There continues to be some general support for the death penalty though even in Florida not strong enough for it to be applied very often. This somewhat weak intensity helps continue the delays and drug issues might in various states lead to more delays given it. But, I continue to doubt it will in the long term stop executions totally, especially in a few high execution states.

OTOH, it might be a major issue (wrongly or not) where the death penalty is nearly never applied. This also, as suggested by the first comment, apply to federal executions.

Posted by: Joe | Oct 28, 2013 12:41:56 PM

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