Lethal Injections

(Bloomberg) -- Capital punishment sets the U.S. apart from all other developed democracies except Japan. The U.S. ranked seventh in number of executions in 2018, behind China, Iran, Saudi Arabia, Vietnam, Iraq and Egypt. In recent years, pharmaceutical companies have made it harder for officials in the U.S. to carry out executions by refusing to supply the drugs commonly used in them. That’s forced the 29 states that have the death penalty on the books to find new sources and types of lethal drugs. Botched executions that resulted raised the question of whether the U.S. was running out of acceptable ways to kill people. But after appearing to head toward extinction, the death penalty may be poised for a resurgence in the U.S.

The Situation

Attorney General William Barr announced in July that the U.S. would resume enforcing death sentences for federal crimes in December. While U.S. states have put more than 300 people to death in the past decade, the federal government hasn’t executed anyone since 2003. Meanwhile, the Supreme Court is indicating an increased receptiveness toward capital punishment now that two justices appointed by President Donald Trump are on the bench. In 2015 the death penalty was under so much pressure that then-Justice Antonin Scalia said he “wouldn’t be surprised” if his colleagues outlawed it. One source of that pressure: three problematic 2014 executions in which inmates injected with the sedative midazolam writhed, groaned or gasped for air, and took as long as two hours to die. In June 2015, a divided U.S. Supreme Court upheld the use of the drug, rejecting arguments that it puts inmates at risk of a painful death. In April, the court cleared the state of Missouri to give a lethal injection to a man who said his rare medical condition meant he would probably choke on his own blood. The opinion was one of several indicating the court in its current configuration would be more resistant to last-minute filings by inmates than the court had been previously.

The Background

More than two-thirds of countries have abolished the death penalty legally or in practice. The U.S. Supreme Court suspended capital punishment in 1972, ruling that it was applied arbitrarily, but reinstated it in 1976. Since then, a handful of U.S. states have abolished it — New Hampshire did so in 2019, and Washington’s top court ruled it unconstitutional in 2018. The Supreme Court has effectively restricted its use to murder cases and barred it for juveniles and the mentally disabled. Hanging, firing squads, the electric chair and the gas chamber generally have given way to procedures seen as more humane. Lethal injection, introduced in 1982, is now the sole or primary method in all the 29 states. In 2008, the Supreme Court upheld what was then a standard three-drug protocol, saying adequate safeguards ensured inmates don’t endure significant pain. Drugmaker restrictions have since prompted states to vary the formula. If lethal drugs aren’t available, Utah now allows execution by firing squad, and Oklahoma, Alabama and Mississippi have approved using nitrogen gas, an untested method. In 2018 in Tennessee, two men chose death by electrocution rather than lethal injection. Other countries known to have practiced lethal injection are China, Thailand, Guatemala and Vietnam, which has also had trouble sourcing reliable drugs.

The Argument

The lethal injection debate has become a proxy for the broader fight over the death penalty’s fairness and effectiveness. The bungled executions have provided new legal ammunition for opponents, who say lethal injection is now so risky it violates the constitutional ban on cruel and unusual punishments. In particular, they question the effects of midazolam as well as the credentials of both the drugmakers who supply lethal drugs and the prison officials who administer them. Their identities are generally kept secret. At a minimum, critics say, the Constitution requires states to provide such details so the public can have an informed debate about whether lethal injection is cruel and unusual and inmates can mount a knowledgeable legal challenge. The 9th U.S. Circuit Court of Appeals blocked Joseph Wood’s execution in Arizona on those grounds in 2014, but the Supreme Court set aside the decision. Supporters of capital punishment say that some risk of pain is intrinsic to any execution. In its April opinion, the Supreme Court said that the Constitution “does not guarantee a prisoner a painless death — something that, of course, isn’t guaranteed to many people, including most victims of capital crimes.”

The Reference Shelf

• The Death Penalty Information Center’s page on lethal injection.
• The Oklahoma Department of Public Safety report on the execution of Clayton Lockett.
• An academic paper on the legal issues surrounding lethal injection.
• Scotusblog’s page on the 2008 Baze v. Rees Supreme Court case.
• The Supreme Court’s April 2019 ruling.

To contact the editor responsible for this QuickTake: Lisa Beyer at lbeyer3@bloomberg.net

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