On November 20, 2019, U.S. District Judge Tanya S. Chutkan issued a preliminary injunction halting four executions that the Justice Department planned to carry out in December. [1] Judge Chutkan stated that the plaintiffs would, “suffer the irreparable harm of being executed under a potentially unlawful procedure before their claims can be fully adjudicated.” [2] These legal challenges to the lethal injection procedure originally stemmed from a series of botched executions in the mid-2000s. [3] During the Obama administration, these cases were put on hold as President Obama directed then Attorney General Eric Holder to review lethal injection as part of a broader evaluation of the federal death penalty. [4]
When Attorney General William Barr announced in July of 2019 that the federal government would resume executions of federal death row inmates after a two-decade moratorium, he also announced the use of pentobarbital. This method, by a single drug, works much like an overdose by shutting down the central nervous system. [5] However, as Judge Chutkan ruled in the U.S. District Court, pentobarbital’s use for federal executions would violate the Federal Death Penalty Act of 1994 if pentobarbital is not used in the state where the inmate’s conviction was handed down. [6] Other critics have argued that this announcement plainly violates the Administrative Procedure Act because of the lack of public comment prior to a shift in the Justice Department’s rules. [7]
Currently, twenty-nine states have death penalty statutes on their books with four governor-imposed moratoriums. [8] Lethal injection has been used in eighty-eight percent of executions since 1976, the modern era of the death penalty. The second highest method, electrocution, is a mere eleven percent and has not been used since 2002 until Tennessee executed three death row inmates by electric chair beginning in late 2019. Traditionally, lethal injections have been carried out using a three-drug cocktail. The first drug, a barbiturate, acts as a sedative and painkiller. The second is a paralytic which stops any body movement. Finally, potassium chloride is used to stop the heart.
The effectiveness of lethal injection drugs is not absolute. The most commonly used barbiturate is sodium thiopental. However, the drug is relatively short lasting which can lead to it wearing off before the lethal injection of potassium chloride. Potassium chloride is an agonizingly painful drug unless the person is completely sedated. The problem is that due to the paralytic, it is incredibly difficult to tell if person is in pain. [9] Alternative cocktails also haven’t escaped scrutiny. In 2014, Arizona adopted a two-drug combination with a sedative called midazolam and a narcotic called hydromorphone. [10] The dose, fifty milligrams each, is supposed to be lethal.[11] That same year Joseph Wood was scheduled for execution in Arizona for double murder. After being sedated and injected, Wood’s stomach began to convulse, his mouth opened, and he appeared to be gulping for air. As the state gave him more and more doses, in a stunningly eerie scene, the doctor repeatedly took the microphone to restate that Wood was “completely sedated” even as the observers could hear Wood making sounds on the table. [12] All told, the state gave Wood fifteen doses of their new cocktail. It took him nearly two hours to die. [13] Although the state defended its execution of Wood, the governor immediately put Arizona’s new protocol in review and the state has not executed anyone since. [14] [15]
Another issue facing the efficacy of lethal injection is that many drug companies have begun to fight against the use of their drugs in executions. Hospira, previously the main manufacturer for sodium thiopental, decided to cease production of the drug in 2011. [16] In 2016, Pfizer blocked the use of its drugs for executions. [17] Last year, drug company Fresnius Kabi filed a federal lawsuit to block the state of Nebraska from using its drugs in lethal injections. [18] These actions have led to a shortage of lethal injection drugs and prompted concern about states obtaining drugs from unapproved and potentially dangerous sources. [19]
Some death row inmates have attempted to take their death sentence into their own hands. Two separate petitions from Alabama asked the Supreme Court to consider alternative execution methods. In 2017, Thomas Arthur proposed execution by a firing squad. [20] In 2019, Christopher Lee Price sought execution by nitrogen hypoxia. [21] The Court denied both petitions. Unable to mask her disgust, Justice Sotomayor authored an unusually scathing dissent to the denial of Arthur’s petition, punctuated by Sotomayor refusing to “respectfully” dissent. [22] Earlier this year, the Court heard a case from Missouri which challenged the constitutionality of Missouri’s use of pentobarbital. The petitioner argued that due to his specific medical condition, using pentobarbital would be “cruel and unusual.” [23] The Court disagreed and affirmed the Court of the Appeals in large part because the petitioner had not satisfied the Baze-Glossip Test. [24] The Baze-Glossip Test prevents death row inmates from challenging the execution method of their states unless they propose (1) a known and alternative method of execution and (2) established that that method would be less painful than the existing method. [25] Justice Sotomayor specifically took aim at this test in her 2017 dissent in Arthur v. Dunn writing, ”The Court of Appeals…denied Arthur’s claim because Alabama law does not expressly permit execution by firing squad, and so it cannot be a “known and available” alternative under Glossip. Because this decision permits States to immunize their methods of execution – no matter how cruel or how unusual – from judicial review and thus permits state law to subvert the Federal Constitution.” [26]
The Founders clearly intended to sanction capital punishment in both the Fifth and Eighth Amendments. But like many aspects of the Constitution, it has adapted for our times and our modern views. And yet, there is a clear and disconcerting conflict with this country’s perception of the legal meaning of “cruel and unusual” that struggles to align it with evolving notions of decency and being “civilized.” One of the more unusual elements is a conservative block of the Court, for all its defense of original meaning and intentions, refusing to even consider a method of execution that would have been a well-known and available alternative to the Founders. Justice Sotomayor cites research that suggests that a firing squad would at the very least, be as instant and painless as any method that exists today. [27] It is worth at least asking ourselves whether allowing a form of execution with multiple documented instances of causing considerable agony meets our societal standard to be humane and our constitutional standard against being cruel.
It should also not be forgotten that the nation’s struggle with applying the death penalty impacts inmates themselves. In January 2019, Scott Dozier had been on Nevada’s death for nearly 12 years for a 2002 murder. [28] Since the 1980’s the average time on death row has nearly tripled to twenty years. [29] Dozier however, rather than fight his conviction, chose to waive his right to appeal. Even so, his death was no longer entirely up to him anymore. Despite openly stating his desire to die, Nevada stayed his execution twice due to many of the same questions plaguing lethal injection executions across the country; questions over the efficacy of the state’s chosen cocktail and drug companies suing to block the use of their drugs. Nevada then planned to use fentanyl, the drug at the center of the opioid epidemic, as a substitute in a new cocktail. But on Saturday, January 5, 2019, prison officials found Dozier hanging by his bedsheet. With his case still ongoing in a federal courtroom, he was pronounced dead at 4:35 PM. [30]
While there is a spotlight on the potential innocence of death row inmates, it is just as consequential to understand what is happening when the lights come on in the execution chamber. The state of lethal injection in this country has put our criminal justice system at a crossroads. If indeed we decide that we still have the will to carry out our executions, the government must dedicate resources to creating a fail-safe option or allow for other alternatives. If not, then we must start asking more fundamental questions about our constitutional priorities.
[2] Id.
[4] https://www.nytimes.com/2014/05/03/us/flawed-oklahoma-execution-deeply-troubling-obama-says.html
[10] https://deathpenaltyinfo.org/executions/lethal-injection/state-by-state-lethal-injection-protocols