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May 24, 2016

Reviewing the state and future of lethal injection as execution method

Lincoln Caplan has this New Yorker piece headlined "The End Of The Open Market For Lethal-Injection Drugs," which provides a useful primer on where matters stand regarding lethal injection as a means carrying out death sentences on condemned murderers. Here are excerpts from the start, middle and end of the lengty piece:

Last week, the global drug company Pfizer announced sweeping new restrictions on the distribution of seven of its products, preventing them from being used to carry out the death penalty. Pfizer came into possession of those products, which include sedatives, paralytics, a pain medication, and a drug used to prevent or treat low levels of potassium in the blood, when it acquired the pharmaceutical company Hospira, in September.  Its decision is an enormously significant one for the death penalty in the United States, and ends a long and chaotic chapter in which governments, drug companies, and activists worldwide have gradually closed the open market for the federally approved drugs that have been used for lethal injections.

Twenty of the thirty-one states with the death penalty on the books now have a formal or informal moratorium on executions, in almost all cases because they have been unable to obtain approved drugs to use in lethal injections. In 2015, there were twenty-eight executions in the U.S., the lowest number since 1994.  This year, there have been fourteen executions so far — six in Texas, five in Georgia, and one each in Alabama, Florida, and Missouri. Prisons in those states can’t buy drugs for lethal injections from American manufacturers.  They can’t import drugs from foreign manufacturers — which, in any case, will not supply them.  In short, their options are severely restricted, which will almost certainly lead to more botched executions.

Texas, Georgia, and Missouri are among the small number of states that have carried out executions using drugs made by compounding pharmacies, which combine, mix, or alter drugs, typically to meet the need of an individual patient — say, by removing an ingredient to which a patient is allergic.  These pharmacies are not required to register with the F.D.A., and the F.D.A. does not approve their products.  They must be licensed by the pharmacy board in the state where they operate, but state oversight has often been scandalously lax.  In February, Oklahoma Attorney General Scott Pruitt said he wants the state to open its own compounding pharmacy, in order to guarantee a supply of the drugs that the state needs for lethal injections. (This despite the fact that no department of corrections could meet a basic requirement for obtaining a drug made by a compounding pharmacy: a medical prescription for an individual patient.)

Oklahoma’s turn toward compounding pharmacies is part of the fallout from Glossip v. Gross, one of the most important death-penalty cases decided by the Supreme Court in the past generation....

The campaign to halt lethal injections as a mode of capital punishment by restricting access to the lethal drugs has not yet ended the death penalty.  But it may very well have accelerated the end game that Breyer invoked in his Glossip dissent.  In the five years between Hospira’s decision to stop making sodium thiopental and Pfizer’s decision to stop supplying drugs for executions, the unsuccessful effort, by one state after another, to carry out lethal injections in a manner that meets standards of fairness and reliability has made it increasingly clear that states cannot constitutionally perform these types of executions.  If they can’t do that, how can the Supreme Court continue to permit capital punishment under the Constitution?  The Court is unlikely to take on an issue this fundamental when it is at the mercy of a polarized Senate and self-important Republican leaders who refuse to confirm the President’s nominee for the Court’s ninth Justice.  But the churn that the campaign has quickened will inevitably give rise to a legal controversy that will force the Justices to face just such a question.

Interestingly, I have since Glossip was decided that the case would prove to be "one of the most important death-penalty cases decided by the Supreme Court in the past generation" only if states viewed the ruling as presenting a unique and new opportunity to move away from lethal injection as an execution method in light of all the drug shortages. Significantly, the Supreme Court has never formally declared any particular execution method unconstitutional, and I thought the Glossip ruling might prompt a number of jurisdictions to see a chance to seriously move forward with a return to firing squads or experimentations with nitrogen gas. But absent any such developments (and absent Justice Breyer finding thre more Justices to join his effort to judicially abolish capital punishment in the US), I have a hard time seeing Glossip as nearly as big practical deal as other recent SCOTUS cases placing limits on capital sentences and procedures like Kennedy and Hurst.

May 24, 2016 at 11:58 AM | Permalink


Kennedy has in the past voiced a distaste for the death penalty, saying in an opinion that it should be a disfavored/last resort. I think he went along without comment in Glossip at least partially because he thought it was a veiled way to totally go after the death penalty. It's possible, especially after the post-opinion developments in the state alone, that he might be second guessing himself. At least in respect to that specific case.

And/or, when there are nine justices again, would join another limited opinion that strengthens the procedural safeguards in execution protocols. His support of free speech might also make him supportive of some challenge to the secrecy rules in place now, something that has received serious pushback in recent years.

Posted by: Joe | May 24, 2016 12:27:23 PM

I understand the appeal, to advocates of the condemned and to abolitionists, of using any angle available to promote their or their clients' interests. I have two problems wih the approach. First, the notion that a person experiences anything more than minor discomfort after the administration of an anesthetic such as propofol or thiopental or even midazolam or fentanyl is specious at best, preposterous at worst. The obvious solution to any such concerns, should we grant them merit, is to make the drugs widely available to states which have capital punishment on the books. Were I personally to face execution, I would beg them to seek out whatever supply of thiopental they could find, impurities notwithstanding, because it would surely be the most painless way for me to exit this world, as evidenced by people who wish to take their own lives in Washington and Oregon - barbiturates are used. This line of reasoning leads me to my second concern alluded by DAB above, namely that states will follow the lead of Tennessee and resurrect the barbaric specters of electric chairs and gas chambers and gallows. Then what tack will abolitionists take? Lobby AEP and rope industries to limit supply of their wares to prison officials? This path of going after the most humane means of killing a person on the basis of technicalities to circumvent the law rather than change the law has inherent and not small risks of backfiring with severe consequences. (Written without implying any position on the issue, as I learned from DAB himself.)

Posted by: Scott Aberegg | May 24, 2016 4:55:02 PM

"specious at best, preposterous at worst"

I'm not an expert but medical experts disagree on the lack of risk involved in usage of the drugs in question. They surely split on the issue but find such adjectives applicable to those who bluntly deem it unreasonable to be concerned. Some experts argue there is one.

I note in the past electrocution etc. were deemed the "most humane." The latest arguments are either use of inert gas (a new form of gas chamber) or perhaps broader usage of the firing squad (having a squick factor but even those experts wary of the death penalty in some cases suggest it might be the best way for the defendant).

Personally, standing alone, reliance on problems with drugs is probably not a convincing reason to end the death penalty. There are problems with the usage, including secrecy. The problems as spelled out in a recent Oklahoma grand jury report is not merely abolitionist/defense attorney cant. But, the basic point to me is that the death penalty is at best an imperfect means of punishment. It is a cost/benefit matter. And, this is but one more problem with it with some constitutional implications.

Posted by: Joe | May 24, 2016 6:55:12 PM

i am a critical care medical expert and i reiterate specious to preposterous. I routinely give sedatived and paralytics to patients and then do very painful things to them. The anesthetics do not cause pain. its an absurd line of reasoning.

Posted by: scott Aberegg | May 26, 2016 6:53:42 PM

The main argument is not that the "anesthetics cause pain" but that they are too weak in certain cases to stop the pain. And, medical experts -- who match your expertise apparently -- have argued there is enough risk in that respect to matter.

Posted by: Joe | Oct 12, 2017 7:49:13 PM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB