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March 10, 2014

Should death penalty abolitionists or proponents be more troubled by "Wild West" response to troubles with execution drugs?

The question in the title of this post is the prompted by this lengthy new USA Today article headlined "Death penalty in U.S. spurs Wild West scramble for drugs; Capital punishment in the USA is in decline as states wrestle to find drugs for lethal injections."  Here is how the piece starts:

Prison guards meet in the desert to hand off chemicals for executions. A corrections boss loaded with cash travels to a pharmacy in another state to buy lethal sedatives. States across the country refuse to identify the drugs they use to put the condemned to death.

This is the curious state of capital punishment in America today. Manufacturers are cutting off supplies of lethal injection drugs because of opposition to the death penalty, and prison officials are scrambling to make up the deficit — sharing drugs, buying them from under-regulated pharmacies or using drug combinations never employed before in putting someone to death.

At the same time, growing numbers of states are ending capital punishment altogether. Others are delaying executions until they have a better understanding of what chemicals work best. And the media report blow-by-blow details of prisoners gasping, snorting or crying out during improvised lethal injection, taking seemingly forever to die.

Legal challenges across this new capital punishment landscape are flooding courts, further complicating efforts by states that want to keep putting people to death. "I've done everything I can do to carry out the executions that have been ordered in my state, and if somebody has an idea of how we can do that, I'd like to hear it," says Arkansas Attorney General Dustin McDaniel.

The state has 33 people on death row, no executions since 2005 and a death penalty sidelined last month by a state judge complaining that the Arkansas law for lethal injection isn't clear about what drugs should be used. "I don't know where it will all end up," says an exasperated McDaniel. "I know that in the near future we will see more litigation. We will see fewer executions. We will see states scrambling to come up with alternative methods. And there will be a lot of finger-pointing."

Regular readers know that the difficulties states have had securing execution drugs, combined with the consistent efforts of capital defense lawyers to legally challenge the ways states plan to kill their clients, has produced a remarkable legal and practical hash of the application of the death penalty in nearly all states with death row defendants who have exhausted all other means of appeals. This lethal injection protocol capital hash has been going strong for nearly a decade now, and I do not see any end in sight.

I am inclined to guess that death penalty proponents are most troubled by all the new litigation and practical barriers in the way of carrying out death sentences. But I suspect lots of death penalty abolitionists are likewise troubled by how hard (and with questionable means) some states are trying to go forward with untried methods for ending like. So, I suppose this post is meant to suggest both a descriptive and normative question: who is most troubled with what is going on, and should be?

March 10, 2014 at 10:34 AM | Permalink


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The people who should be most worried are those who are concerned that corporations have too much power. The people of these states have opted for the death penalty, juries in these states have found that these defendants merit the death penalty, courts have found that the sentences were proper and that there is no legal basis for not proceeding, but corporations are preventing these sentences from being carried out.

I would quibble with the writers reference to a growing number of states ending capital punishment. I guess one or two over the last decade qualifies as growing, but it is a very tiny growth spurt.

Posted by: tmm | Mar 10, 2014 11:00:36 AM

Really, blame it on corporations? They may or may not be "people" for all purposes, but if they have legal personhood for any purpose, isn't it to engage in commercial transactions? Why should they not be able to make whatever decisions they want, within the law, about with whom they do business?

If states can't find private parties that want to do business with them for (what they see as) necessary supplies, they have numerous options. They could allocate funds for a state compounding pharmacy that will make the drugs they need. They could pass a statue requiring the already existing labs at state universities to produce the necessary drugs.

Or they could pass laws requiring drug companies that do business in their state to sell the necessary drugs/chemicals to the State on equal terms that they would sell them to anyone else (then perhaps, we would test the less clear boundaries of corporate "personhood" and its attendant rights). Heck, they could try to pass a law that required those companies to manufacture the drugs (Truman nationalized the Steel companies, right?). For that matter, they could go back to electrocution, guillotine, firing squad, or whatever.

Corporations don't want to do what the State would prefer them to do. Absent some actual legal duty, I don't see why that makes this situation their fault. Nor do I see that they are "preventing" sentences from being carried out. That seems more to do with the stubbornness of the various States in terms of insisting on secrecy and complete autonomy to do whatever the heck they want to execute people. If they would stop making it so easy to object to their methods, they could probably get the ultimate result they say they want. (Unless what they really want is to be able to grandstand about defense-side obstructionism and generally take advantage of the populist politics around the death penalty while not actually being required to execute people on a regular basis.)

Posted by: anon | Mar 10, 2014 11:21:23 AM

I agree with tmm. Thought experiment: Suppose that, for ideological reasons, corporations refused to build prisons. Having no place to put repeat, violent criminals, we executed them. Would anyone then think that having the punishment determined by what corporations were willing to provide, instead of by law and legal process, was a good idea?

But the main thing wrong with the article is its starting premise: "Capital punishment in the USA is in decline as states wrestle to find drugs for lethal injections."

It is simply false that capital punishment is in decline, at least if this article is about contemporary conditions. As of today, there have been 10 executions in the United States in 2014. At that rate -- once a week -- there will be about 50 by year's end. That is more than in six out the last seven years, and more than in any of the last four years.

Only in the upside-down abolitionist world does an increase equal a decline.

Posted by: Bill Otis | Mar 10, 2014 11:27:33 AM

anon --

"Really, blame it on corporations? They may or may not be "people" for all purposes, but if they have legal personhood for any purpose, isn't it to engage in commercial transactions? Why should they not be able to make whatever decisions they want, within the law, about with whom they do business?"

What is your opinion about which side should win the Hobby Lobby case?

What is your opinion about statutes, like the one recently vetoed in Arizona, that would permit businesses to refuse, on religious grounds, to provide services to a same-sex wedding?

Posted by: Bill Otis | Mar 10, 2014 11:48:55 AM

tmm - if you are going to comment, please do try and be accurate. The number you are looking for is six in the past decade. There have also been a number of close votes in state legislatures to advance the process of abolition.
Getting back to the thread discussion, there is no answer to the question of who is or should be most concerned. Speaking from my position as an abolitionist, I am certainly concerned that States are behaving like back-street abortionists in trying to procure drugs for purposes of execution, contrary to the wishes of mainstream manufacturers and distributors. These people and organizations have spent lifetimes in medical science in the belief they were creating drugs to save life or minimize pain etc. The ethics of using drugs to kill human beings didn't form part of the effort or inspiration to formulate these drugs and I imagine those involved are mostly feeling pretty sick that they have been used in this manner. It didn't take much effort to persuade them that their discomfort should be translated into actions to prevent sale for the purposes of executions. The question of unlicenced drugs, irregular supply, and the unproven use of drugs, either alone or in combination, should be a concern to everyone, since where does that end. Once such practices are seen to be condoned by the State, then who is to say that the practice will not spread to other contexts. That's one slippery path. I don't suppose that will impress the most ardent pro-dp proponent who seemingly will not be content until the US can boast it has executed the 3000+ remaining on death row, and others presumably to be so sentenced in the future if they have their way.

Posted by: peter | Mar 10, 2014 11:51:32 AM

peter --

I'm pleased to see you back commenting, and concerned with accuracy to boot.

I'm curious, though, that you were not equally concerned with it in an earlier thread in which you participated, in which your fellow abolitionist claudio said that the United States is the lone common law country that retains the death penalty. I pointed out that this is a flagrant falsehood. I asked you to join me in correcting it, but you didn't.

To preserve the accuracy with which you say you are concerned, will you now?

Posted by: Bill Otis | Mar 10, 2014 12:03:03 PM

Bill - I have no wish to be embroiled in a debate, the answer to which will rely on the interpretation and intended meaning of the term "common law country". Certainly the US, or rather those states within the US which retain and practice the death penalty, is largely exceptional of those countries whose law developed from or was substantially influenced by English Common Law. Beyond that, I have no comment, and will have no comment, since I have no further reference point from which to form an opinion.

Posted by: peter | Mar 10, 2014 12:21:54 PM

If corporations are going to be given rights to donate money to politics on equal footing etc., it seems to me that we should respect as a given the various complications involved here to some degree. It is part of freedom.

It is not "illegitimate" if some small minority of corporate actors does things that some majority dislikes here. Such majority opposition, e.g., doesn't disallow great use of money in political campaigns. I agree with anon too that the state has broad powers over corporations that can pressure them to provide the drugs in various ways or the states have a means on their own to do so. I have pointed this out elsewhere to some who are worried about corporate power -- if the will was there, there is a means to limit corporate power, especially since they still are not treated just like humans.

As to the opening question, it's hard to know who should be "more" concerned here. Those against the death penalty & people in general should be concerned with the "hash," Peter giving a flavor of the problems with the "wild west" approach.

I doubt those for the death penalty like it much -- they just see what is done as unfortunately necessary. Since the public has a rather weak concern about the death penalty generally (wanting it in principle, but accepting dealing with even the thousands on death row now with a proverbial eyedropper -- a few executed this year, a few the next), if they knew much about, they probably would be uncomfortable too. It would look unfair and perversion of normal practices.

I guess the "pro" side is concerned more since they want more executions. Those against the death penalty don't like the "wild west" approach, but net, it really doesn't add that much more to what they see as an illicit system overall. And, they think overall it probably reduces the death penalty being applied.

There should be a majority coalition from various sides that sees value in fixing the problem & if past history repeats itself, some movement forward should be possible.

Posted by: Joe | Mar 10, 2014 12:38:58 PM

all very nice comments. but I think if they are sneaking around like criminals in the night. They KNOW they are breaking the law. the govt that is. After all it's hardly the first time!

Posted by: rodsmith | Mar 10, 2014 1:31:02 PM

I had not expected this to go down the road of corporations vs. public funding. I think there's a good argument that the state should manufacture the drugs themselves just like they should build and run prisons themselves. Out of the options states have taken, this strikes me as the least bad.

Based on the evidence so far, I think death penalty proponents are more disturbed by things and, in some cases, have overreacted in response. However, I do think these overreactions should disturb death penalty opponents. I'd rather limit to remove all executions, but I can't say execution through electrocution or poison gas is the better option. I do fear this becoming the result, as drug supplies decline. Admittedly, no business should supply drugs if they think it goes against their conscience and every defendant has a right to take full advantage of the laws that say their execution can't be in a cruel, arbitrary, or capricious manner so they should certainly ensure proper judicial safeguards when it comes to novel methods, but they shouldn't be surprised when the constraints imposed don't end up with the results they were hoping for.

Posted by: Erik M | Mar 10, 2014 1:31:43 PM

"Out of the options states have taken, this strikes me as the least bad."

I agree. If some general rule is in place, it might have an overall good policy result, with implications as to private prisons etc.

"I can't say execution through electrocution or poison gas is the better option"

Question if the legislatures (or the courts) would accept electrocution at this point and somewhat think the same thing as to cyanide gas. Not thinking hanging has much of a future either. A few experts actually suggest the firing squad might be better than lethal injection, but don't see much of a desire to bring that back either.

One person here recently suggested a certain type of gas would be a good option. Not sure about the specifics. Does anyone know about that?

Posted by: Joe | Mar 10, 2014 2:18:14 PM

I think the thinking of many states that have execution methods is they want to use the method that will meet the least resistance to allowing them to carry out executions. So, while gas or the electric chair is problematic from a PR perspective, they don't object to it on other grounds. Given this, if the other methods become more difficult to carry out, I do think states will strongly consider bringing back these methods (particularly because there's already proposed legislation to make it an automatic backup plan in states that still have it as an alternative).

Posted by: Erik M | Mar 10, 2014 3:09:16 PM

See also, in the NYT:

"Deciding If Death Row Inmates Get to Know How They’ll Be Killed"


Posted by: Joe | Mar 10, 2014 5:23:25 PM

Who should be concerned? Well, all of us have thought about the pros and cons of executions.

But specifically corporations? I have not followed much of it, to be sure, but I have read a few times that the companies which have sold these drugs in the past are facing a supply problem, not simply refusing to sell the drugs but not being able to buy the precursors with which to make them. And this is becoming a problem with a number of other medicines (yes, those "lethal injection" drugs are lethal because they are administered in high doses not because they are poisons as such). Several other bloggers have mentioned that even with a prescription pain killers and muscle relaxants are hard to find.

Posted by: John A | Mar 10, 2014 9:48:46 PM

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