Arguments against using lethal injection to execute prisoners on death row, and the refusal of many pharmaceutical companies to provide the chemical used in the process, are forcing states to revert to older forms of capital punishment.
The U.S. Supreme Court has backed the finding against the lethal injection technique as “cruel and unusual punishment,” which has been in use among states since 1977, said the the Death Penalty Information Center (DPIC), a nonprofit advocacy group.
The DPIC notes that pharmaceutical companies have distanced themselves from the drug as well, forcing states who want to continue capital punishment to reevaluate their methodologies.
Nebraska and South Carolina now stand out as particular circumstances in which states are still wielding capital punishment — but without the lethal injection drugs.
On one hand, Nebraska prosecutors continue to seek death sentences, despite having no way to obtain lethal injection drugs, whereas South Carolina lawmakers are pushing execution-by-firing-squad as an alternative death method, report the Associated Press and ABC News Australia.
South Carolina’s latest push last week to implement firing squads has reignited the debate over drug efficacy, humane treatment and availability comes into question.
Drug Efficacy and New Limited Availability
Recently, many states have opted to replace the traditional three-drug procedure previously used in federal executions with a new single-drug — pentobarbital — citing that the previously used “drug cocktail” resulted in many “botched executions” and lawsuits, reports the New York Times.
Most notably in the lawsuits, in 2018, the U.S. Supreme Court ruled that certain cocktails of the lethal injection drugs produce results that are “cruel and unusual punishment” — particularly citing a case in Missouri where an inmate had a rare disease that following a reaction to the injection, he suffocated as his blood filled his airway, according to the DPIC.
Other 2015 Supreme Court rulings note that in some instances, the three-drug protocol fails to render someone unconscious, resulting in excruciating pain also akin to cruel and unusual punishment.
Within the three-drug protocol, research has shown that the first shot of the sedative and painkiller is short-acting, and has the potential to wear off before the actual lethal injection is administered. However, the second dose paralyzes the person, so it’s tough to tell if someone is in pain because they cannot move or cry out, NPR details.
“You look like you’re perfectly placid, but you could be suffering horrifically,” says Paul Enzinna, an attorney at Ellerman Enzinna representing the plaintiffs in a lawsuit challenging the legality of the federal procedure of lethal injection, as quoted by NPR.
As these Supreme Court rulings continued to mount, pharmaceutical manufacturing and distribution companies began to distance themselves with the legal injection drugs, leaving states to adopt the single pentobarbital dose which works “essentially [like] an overdose,” according to Johnathan Groner, a professor of surgery at the Ohio State University College of Medicine who has written extensively on the death penalty.
However, pentobarbital supply is limited in the U.S., particularly since the European drug manufacturers haven’t sold to the U.S. for executions since 2011, leaving states who want the drug to take matters into their own hands.
Due to the difficulty of obtaining the injection drugs, a few states have given up on executions altogether, including Oklahoma which suspended executions after “problems” with injections in two cases, and Virginia, which dropped capital punishment in March of this year, the Associated Press details.
Similarly, Nebraska has been unable to carry out capital punishment sentences because they don’t have any lethal injection drugs — “and likely won’t get any for years, if ever,” the Associated Press reports.
Despite no legal way to execute prisoners, Nebraska prosecutors continue to seek death sentences in cases, despite functionally having no way to carry out on the sentence, reflecting “longstanding ambivalence” towards capital punishment in the state.
However, other states haven’t wanted to give up so easily.
In his 2018 concurrence, Justice Brett Kavanaugh emphasized that all nine justices agreed that any alternative method proposed by the death row prisoner or facility “need not be authorized under current state law” in order for an execution to be carried out.
So, it appears states have begun doing just that.
South Carolina’s Firing Squad
The South Carolina House of Representatives passed a bill last week that allows for firing squads to carry out death penalty sentences and makes electrocution a more likely means of execution when lethal injection isn’t possible, CNN reports.
Currently, the state’s supply of lethal-injection drugs have expired, and they have not been able to purchase any more vials.
After the bill is approved by the state senate, it will go to Republican Gov. Henry McMaster, who has already said he will sign it, according to ABC News Australia.
The only other three states that allow a firing squad are Mississippi, Oklahoma and Utah, according to the Death Penalty Information Center.
Meanwhile, as South Carolina and other states are opting for alternatives to lethal injection, other states have turned to emptying out their pockets to obtain the deadly cocktail of drugs.
In April of this year, the Guardian obtained documents that show Arizona, Tennessee and Missouri all shelled out astronomical amounts of money for “unmarked jars and boxes” of vials of pentobarbital sodium salt.
Arizona has spent $1,500,000 on 1,000 vials of the drug, each containing 1g, illustrating the lengths the state is willing to go to kill death row prisoners.
Experts say five grams are needed to induce a fatal dose, meaning there are 200 fatal doses within the $1.5m shipments.
This lavish spending has angered advocates, mainly considering executions in America are nearing record lows and not much of a spending priority, according to the DPIC.
Just 17 inmates were put to death in 2020, which is down from the high of 98 killed in 1999, says the Associated Press.
This summary was produced by TCR staff writer Andrea Cipriano.