STATE LEGISLATURES MAGAZINE | MAY 2015
Drug shortages and court challenges are causing lawmakers to review their states' method of execution.
By Amber Widgery
Utah lawmakers recently passed a law allowing the use of firing squads when lethal injection drugs aren’t available. It was a solemn decision that the Legislature took very seriously, says Utah Senator Curt Bramble (R). Lawmakers looked at secondary methods, he says, because “those who oppose capital punishment have been very successful at mounting opposition within the pharmaceutical industry to reduce the availability of lethal injection drugs.”
Other states are considering alternative methods and different drugs as well, and some states have turned to compounding pharmacies to obtain drugs that are no longer available for sale elsewhere.
Lethal injection is currently the primary method of execution in all 32 states that have capital punishment. Texas was the first state to use the method, in 1982.
In a 2008 case, Baze v. Rees, the U.S. Supreme Court approved a three-drug combination of (1) sodium thiopental, a sedative that induces unconsciousness, (2) pancuronium bromide, a muscle relaxer that induces paralysis, stopping respiration, and (3) potassium chloride, which causes cardiac arrest.
This was the same three-drug combination that was used in the first lethal injection execution, and at the time of the Baze opinion 30 states were using that exact mixture. The Court’s opinion also made it apparent that “substantially similar” drug combinations would be legally acceptable.
A Dwindling Supply
In 2011, the sole manufacturer of sodium thiopental tried to transfer production of the drug to Europe. European authorities opposed the use of the drug in executions and the company stopped production. When supplies of sodium thiopental expired or ran out, states turned to new drugs, like pentobarbital. To date, 14 states have used pentobarbital in executions, but the owner of pentobarbital subsequently cut off state access to that drug when they discovered it was being used by states for executions.
Georgia, Missouri, South Dakota and Texas have since turned to compounding pharmacies to obtain pentobarbital or substitutes. In Ohio, the Department of Rehabilitation and Correction modified the state’s execution policy to allow the use of drugs from a compounding pharmacy. And in 2014, the Ohio General Assembly passed legislation to protect the confidentiality and licensing of pharmacies or people involved in lethal injection procedures.
Other states have enacted similar confidentiality laws that have been the frequent subject of litigation. In 2014, high courts in Georgia and Oklahoma upheld confidentiality laws, thereby allowing executions to continue with drugs from an undisclosed source.
As the more common lethal injection drugs have become harder to get, state legislatures have explored other lethal injection protocols. Eight states—Arizona, Georgia, Idaho, Missouri, Ohio, South Dakota, Texas and Washington—have performed an execution using only one drug, and in Arizona and Ohio they have performed executions using a combination of two drugs.
States have also tried other drugs. Arizona, Florida and Ohio have used Midazolam in combination with one or two other drugs. But it is now part of a U.S. Supreme Court case that stems from the 2014 execution of Clayton Lockett in Oklahoma that the 10th U.S. Circuit Court of Appeals described as a “procedural disaster.”
The justices will decide whether Oklahoma’s use of Midazolam violates the U.S. Constitution’s Eighth Amendment prohibition against “cruel and unusual punishment” because it cannot reliably produce a deep, coma-like unconsciousness that will prevent substantial pain caused by the effects of the second and third drugs.
Considering Other Methods
Lawmakers in Tennessee passed legislation last year that allows the use of electrocution as a secondary method of carrying out a death sentence if the state’s lethal injection method is found to be unconstitutional or when an essential drug is unavailable. Oklahoma passed similar legislation this session allowing the use of nitrogen gas if lethal injection becomes unavailable. Representative Mike Christian (R), the bill’s sponsor, told local reporters that lethal injection had become experimental and that it was on its way out. In mid-April, the enactment was awaiting the governor’s signature.
Fifteen states now have a secondary method of execution. Laws in Delaware, New Hampshire, Oklahoma and Wyoming are similar to the new laws in Utah and Tennessee and provide a secondary option if lethal injection is unavailable. Arizona, Arkansas Kentucky, Tennessee and Utah all have secondary methods for offenders who were sentenced before the introduction of lethal injection. And Alabama, Florida, Missouri, South Carolina, Virginia and Washington have other methods that are available if the offender requests an alternative.
Wyoming lawmakers passed legislation at the end of the session this year that would have changed the state’s back-up method of execution from lethal gas to firing squad. However, the Legislature adjourned before a conference committee took final action, postponing the measure indefinitely. Other bills have passed at least one chamber in Alabama, Arkansas, Mississippi and Virginia and more have been proposed.
More than 3,000 inmates continue to live on death row around the country.
Amber Widgery is an NCSL research analyst.