Death Penalty Delayed But Not Denied By Drug Problems
By Alan Greenblatt
Like many states, Missouri is struggling to obtain the drugs it normally uses to carry out the death penalty.
Last month, Democratic Gov. Jay Nixon stayed an execution under pressure from the medical community and the European Union, which threatened to hold up supplies of propofol, the anesthetic the state intended to use.
Missouri's Department of Corrections decided to take matters into its own hands. With another execution scheduled for Nov. 20, the department announced it would be using a different drug and adding a compounding pharmacy to its "execution team."
Other states are pursuing similar courses. Texas and Florida have also recently turned to new suppliers and new protocols. Ohio has an execution scheduled for Thursday, using an untested combination of drugs.
All of it is a response to the most recent form of resistance to capital punishment — legal and logistical challenges to the lethal injection regimens that have been utilized by most states.
It doesn't signal the end of the death penalty, says Franklin Zimring, a law professor at the University of California, Berkeley, but it does reveal a new front in the long-running battle.
"Everybody uses specific issues about lethal injections to have a conversation about how they feel about putting people to death," Zimring says. "In that sense, even though you think you're having a conversation about drugs and means, you're really having a conversation about ends and hostility to state execution."
Most states have done away with firing squads, gas chambers and the electric chair. Five years ago, the Supreme Court ruled that the three-drug protocol that most states used for executions passed constitutional muster.
But legal challenges to lethal injections have continued to proliferate since then, a part of every capital defense attorney's playbook.
Some of the drugs of choice were manufactured in European countries that are officially opposed to the death penalty. State departments of correction kept attempting to find new suppliers of sedatives and then running into new obstacles.
After sodium pentobarbital became a drug of choice in 2009, for example, there was an uproar in Denmark because the product was made by Lundbeck, a Danish pharmaceutical company. In 2011, the company announced it would no longer ship the drug to American prisons.
There have been other such cases. It's like a reverse boycott, with companies refusing to sell their product to end-users they don't like.
"You don't have a lot of manufacturers of the drugs," says Deborah Denno, an expert on lethal injections at Fordham Law School. "You have a situation where the companies that were supplying the drugs, when they are revealed and realize their drugs are going to be used for executions, they don't want to have anything to do with it."
New Means To Prevent
Now, there are concerns that the new methods states are trying out could cause pain and lingering deaths. There are certain to be more legal challenges and more pressure brought to bear on manufacturers.
All of this is just the latest proxy battle abolitionists are waging against the death penalty itself, says Robert Blecker, author of the new book The Death of Punishment, a defense of capital punishment.
He says it's in keeping with other debates in recent years, such as concerns about racial disparities and claims that the death penalty is simply too expensive to be worth keeping on the books.
"The argument of the moment is the lethal injection argument — we can't do it perfectly and risk a painful death, so we can't do it at all," says Blecker, a professor at New York Law School. "Of course, the irony is that it's the abolitionists who are making it difficult, threatening to boycott European companies that supply the pharmaceuticals that would kill without any doubt."
Any method that states select is going to be subject to litigation, Blecker says, but he argues there's no chance problems with lethal injections will lead to a universal moratorium on executions.
Still, he concedes that the latest debate "could contribute to the weariness of those who support the death penalty in principle, but worry because there are so many obstacles."
Zimring, the Berkeley law professor, agrees. When he published his book The Contradictions of American Capital Punishment nine years ago, he says, prisoners on death row in Texas were 27 times as likely to actually be executed as those in California.
Today, he says, the difference is more like 50 times.
Not Going Away
Last month, Gallup released a poll that showed U.S. support for the death penalty had dropped to 60 percent, the lowest registered since 1972.
But that's still a big majority in favor. And, although the number of executions carried out has dropped by more than half since reaching a peak in 1999, there are still dozens of killers put to death each year.
"This is a country that wants the death penalty," Denno says, "but there's enormous stigma."
States are running into almost-unending hurdles when it comes to carrying out executions, says Richard Dieter, executive director of the Death Penalty Information Center. For some, the cumulative effect has been the creation of de facto moratoriums.
Arkansas hasn't carried out an execution since 2005, largely owing to problems with lethal injections.
"Our system is completely broken," Arkansas Attorney General Dustin McDaniel told National Journal. "I can no more flap my arms and fly across the state than I can carry out an execution."
But some states are continuing to execute prisoners, despite the challenges.
"You bring these challenges in Texas against a new drug, and the executions don't get delayed a day," Dieter says.