Eight inmates in Arkansas, all men convicted of murder, are scheduled to be executed over 10 days next month. But there’s a big problem: the state can’t find enough witnesses for the executions. State law requires a minimum of six witnesses be present for an execution. In addition to the struggle to procure enough witnesses, the executions, scheduled between April 17 and 27, face another hurdle: the inmates filed a federal complaint on Monday, claiming the 10-day execution spree is “cruel and unusual.”

According to a local newspaper, the state is desperately seeking volunteers to attend the executions. And Wendy Kelly, the director of the Department of Correction, is personally seeking volunteers. In fact, last Tuesday, Kelly reportedly fished for volunteers during a keynote address at the Little Rock Rotary Club.

“You seem to be a group that does not have felony backgrounds and are over 21,” Kelly said, according to The Arkansas Democrat-Gazette. “So if you’re interested in serving in that area, in this serious role, just call my office.”

Arkansas law dictates all executions must include “a number of respectable citizens numbering not fewer than six nor more than twelve whose presence is necessary to verify that the execution was conducted in the manner required by law.” But finding enough citizens willing to sit-in on the executions has been a challenge.

Last month, Arkansas Gov. Asa Hutchinson ordered the executions; four of the men are black, four are white. All were convicted of murder. The rationale for squeezing all eight executions in 10 days: Arkansas’s stock of midazolam, a sedative used in the three-drug lethal injection, expires at the end of April. Midazolam is difficult to acquire, and due its precarious legality, replenishing the state’s supply is not a guarantee.

Aside from the witness recruiting effort, the executions could be stalled because of the inmates’ federal complaint. John Williams, a federal public defender who represents three of the inmates, said the complaint “challenges the execution schedule.” He added: “It’s an unprecedented act and we think the pace of the schedule puts our clients at unnecessary risk.” The judge could dismiss the complaint outright, or issue a preliminary injunction, which would likely delay the executions.

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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Capital punishment in the United States has long faced public scrutiny. The death penalty is a topic of debate among Americans largely due to concerns about its efficacy in deterring crime, as well as growing rates of botched executions. In 2016, the U.S. saw a record decline in death penalty use and public support. A number of states postponed scheduled executions due to drug shortages and botched executions. While capital punishment remains legal in 32 states, this number could steadily decrease based on the current political climate.

Current Death Penalty Trends

The Death Penalty Information Center (DPIC) reported that 30 people were sentenced to death in its 2016 Year End Report–the lowest number of death sentences since states began to re-enact death penalty statutes in 1973. It found that executions also declined more than 25 percent, with only 20 executions carried out in 2016 by just five states.  Public opinion polls show support for the death penalty at a four-decade low. At just 49 percent, support fell below 50 percent for the first time in 45 years, according to a study by the Pew Research Center. This is a seven point drop from the previous year.

The DPIC concluded that the number of people waiting on death row decreased in 2016, as prisoners either passed away in custody, or obtained relief from their convictions. There was also a decline in the number of counties in death penalty states pursuing capital punishment. This past year three states–California, Nebraska, and Oklahoma–overwhelmingly voted to reject propositions that would have eliminated the death penalty. In California there hasn’t been an execution since 2006, and yet residents still seem to be in favor of its use, when deemed appropriate. Geography also played a roll in American death penalty trends. Eighty percent of all executions in 2016 were carried out by only two states–Texas and Georgia.

Mental Health Issues

Historically, executed prisoners tend to be those who are the most vulnerable, with the poorest legal representation. The DPIC’s review found that at least 60 percent of executed prisoners exhibited a combination of mental health issues including: signs of mental illness, brain impairment, and low intellectual functioning.

In Texas, a mentally ill prisoner was executed who exhibited signs of mental illness since infancy and was diagnosed with a variety of mental afflictions by the time he was 18. Georgia also executed an intellectually disabled prisoner, who was black, even though he had an openly racist juror, a trial lawyer who slept through portions of the trial, and significant evidence of an intellectual disability presented in post-conviction proceedings. Additionally, six of the prisoners who were executed in 2016 were 21 or younger at the time of their offenses.

A case argued before the Supreme Court in late 2016 attempted to dispute the constitutionality of executing prisoners with intellectual disabilities. Moore v. Texas questions the “standards that may be used to determine whether a defendant convicted of murder is mentally deficient.” Lawyers for the defendant argued that Texas utilizes outdated methods of determining mental capacity, rather than the standards mandated by the Supreme Court. The defendant, Bobby J. Moore, has an average IQ of 70 based on multiple tests. Texas argued that there is no national standard for determining mental capacity; the ruling from the Supreme Court, while still currently unknown, will certainly have a profound effect on other states’ death penalty procedures.

Botched Executions and Experimental Drugs

The overall decline in the use of the death penalty may also be attributed to recent botched executions. Lethal injection, the most utilized form of execution, has a botched execution rate of 7.12 percent. All manufacturers of FDA-approved drugs that could potentially be used for lethal injections have enforced a strict ban on selling their drugs for that purpose; companies are no longer keen on associating any of their products with capital punishment proceedings.

Problematic lethal injection procedures have been of great concern for the past few years and have occurred all over the country. In Ohio, the prisons’ agency is attempting to obtain a drug that could reverse the lethal injection process if needed. If executioners were not confident the first three drugs rendered a prisoner unconscious, they would be able to use the drug to reverse the effects. This request comes after executions have been on hold in the state since January 2014, when a prisoner gasped and snorted during the 26 minutes it took him to die. Arizona’s last execution was also in 2014, when a prisoner took two hours to die after receiving an injection of the drug midazolam.

As recently as December 2016, a man executed in Alabama struggled for air, coughed, heaved, and clenched his left fist during the 13 minutes of his execution. Two consciousness checks were performed during the execution. The inmate moved his arm both times after the tests. The first drug used in the three-drug cocktail was midazolam. The Supreme Court ruled in a 5-4 decision in 2015 that the use of midazolam is constitutional, in spite of reports that the drug does not reliably render an inmate unconscious.

Despite its death row population remaining in limbo after the Supreme Court struck down the state’s capital sentencing system in January 2016, Florida is poised to start utilizing a new experimental lethal injection drug. Such a move is likely to cause more litigation in the coming future, as anti-death penalty advocates are troubled by the use of experimental procedures in lethal injections.

Efficacy in Deterring Crime and Racial Bias

Though capital punishment is employed to deter violent crime, there is little evidence that it actually does so. In a 2008 Death Penalty Information Survey, 88 percent of polled criminologists said they do not believe that capital punishment is an effective deterrent for crime. As recently as 2015, non-death penalty states had a murder rate of 4.13, while death penalty states had a murder rate of  5.15—a 25 percent difference. In every year since 1990, non-death penalty states had a lower murder rate than death penalty states. And in a 2008 poll of 500 police chiefs, the death penalty ranked last in their priorities for reducing crime.

Moreover, the racial bias in the criminal justice system is astounding. Over half of the current death row population since 1976 is non-white. Interracial murders also disproportionately target blacks. Since 1976, 283 black defendants have been executed for the murder of a white victim; this is in stark contrast to the 20 white defendants executed for murdering a black victim. A 2014 study performed by Professor Katherine Beckett of the University of Washington, found that jurors in Washington from 1981-2014 were four and a half times more likely to sentence a black defendant to death than a non-black defendant.

Conclusion

The decline in the number of prisoners executed in 2016, as well as the decrease in the number of people sentenced to death, seem to signify a move away from capital punishment in the U.S. Such a drop in executions may be attributed to states putting their executions on hold after extremely troublesome lethal injection proceedings over the past few years, rather than a general shift toward other sentencing alternatives. Regardless of waning numbers, citizens voted in large margins to retain the death penalty in multiple states this year, indicating that support for the death penalty in particular cases is still acceptable to many. Whether any state protocols and procedures will change, however, depends heavily on Supreme Court decisions in the future.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

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According to a long line of Supreme Court cases, death is different. Because it is the ultimate penalty, every aspect of a trial and sentencing are subjected to the highest levels of scrutiny when the death penalty is involved. As a society, we fall short of the high standard of care that we hope to achieve in these cases but we instinctively feel that cases involving execution are special.

Much attention is paid to the process of trying, convicting, and sentencing for capital offenses, but recently, attention has also been paid to the execution process itself. In May, Pfizer, one of the largest pharmaceutical companies in the United States, announced that it would be taking steps to block states from purchasing its drugs for use in executions. Some states feel that only lethal injection is an appropriately humane method. Some allow the use of the electric chair as well. In Utah, the use of a firing squad is once again an option. For states that do not allow methods other than lethal injection, these restrictions are creating a shortage of the cocktail of drugs involved, impacting the state’s ability to execute those they have sentenced.

Blocking states’ ability to purchase these drugs limits their ability to execute those convicted of capital crimes by that method but it merely delays these executions until other methods can be approved or the drugs are acquired some other way. It isn’t an effective method for changing capital punishment as a policy. But companies in the United States, and all over the world, have used their power to refuse to sell these drugs to protest the death penalty with mixed consequences.

The Process

Lethal injection as a method of execution is surprisingly complicated. One would think that the process of killing a prisoner would be simple, but in most states that is not the case. Executions typically involve a cocktail of three different drugs. First a sedative, typically some kind of barbiturate, to render the condemned unconscious. Then a paralytic, which affects one’s ability to breathe. Finally, potassium chloride to stop the heart.

This Forbes article goes into detail regarding the specific drugs and their effects on the human body, but essentially, the potential to cause suffering through misapplication of this method is very high. In the video below from CNN, Dr. Sanjay Gupta also gives a brief explanation of the process here, specifically in regard to the “botched” execution of Clayton Lockett.

As explained in the video, the execution process failed to go as planned even though Oklahoma was following a protocol that had been approved and is not considered to be inhumane. In fact, the Supreme Court recently upheld the protocol–specifically the use of the drug midazolam as the sedative–finding that it is not in violation of the 8th Amendment prohibition against cruel and unusual punishment. Oklahoma increased the amount of that drug used in its executions since the Lockett execution, but the essential three-step drug protocol is the same.

This is the central problem that Pfizer is trying to address with its sales ban. Like other companies and the European Union, which also bans the sale of drugs used in executions to state facilities, Pfizer does not want its products used to carry out executions. These products, Pfizer argues, were meant to promote health for its clients and using them in an execution is antithetical to its purpose as a company.

But these efforts, although they may assuage the consciences of the companies and nations that employ them, are not without cost. They make it just difficult enough for states to acquire these drugs that the process becomes less transparent and more dangerous, but not difficult enough to stop executions altogether. States have come up with various methods to circumvent these restrictions. For example, reviving the firing squad as an option in Utah is in part a response to the difficulty getting lethal injection drugs.

States also now turn to “compounding pharmacies” to get the necessary drug cocktail. These companies purchase the drugs by themselves, since the state cannot buy them due to company restrictions, and combine them for use in an execution. They aren’t regulated to the same degree as a traditional pharmaceutical company, which means figuring out how effective the drugs will be in making execution as humane as possible is more difficult. States also may try to use straw men purchasers in order to get the needed drugs.

In order to facilitate these executions by lethal injection, as opposed to another method such as the electric chair, Virginia and a few other states have proposed allowing pharmacists who assist the state to remain secret. This video provides some of the arguments against this proposal and a look at some of the legal issues surrounding it.

Allowing pharmaceutical companies who assist the state in executions to remain secret or to hide the sources of the drugs creates a host of concerns. Firstly, it prevents lawyers from getting the necessary information to challenge an execution that they feel was cruel and unusual. They won’t be able to get evidence about the protocol used in that particular execution, making it harder to stop a protocol from being repeated the future. Secondly, it prevents lawyers from finding out where the drugs are coming from before the execution as well, so they would be unable to challenge the use of drugs from a company that had a history of errors in other medical contexts.

It also eliminates the fear of being sued or criminally charged for mistakes made in the preparations of the drugs, which is one of the most powerful incentives for pharmaceutical companies to behave properly. In the absence of adequate regulation, the power to be economically damaged by a lawsuit is one of the ways that consumers can ensure product safety. Getting rid of that tool for death penalty drugs could allow the negligent behavior to go unchecked. While there are lobbying groups who oppose the death penalty that put pressure on pharmaceutical companies, there is not the same widespread social concern for this issue that would give companies an incentive to be responsible, for fear of a boycott, as there would be for a product like aspirin. The heinous nature of the crimes that these prisoners have committed means that many people aren’t concerned about whether they are executed humanely. Even in cases where the execution was extremely painful, so-called “botched” executions, it isn’t a top priority for most to change how we execute criminals.

Humane For Whom? 

Moves by pharmaceutical companies to prevent their drugs from being used in executions has sparked an interesting debate. Most would argue that they should have the right to restrict these sales, but in doing so they are actually increasing the likelihood that states will botch executions. Several executions have been delayed but a state is more likely to turn to a compounding pharmacy or get the drugs from another state than it is to revert to an alternate method of execution. So far only Utah and Oklahoma have gone outside the box–with firing squad and gas chamber respectively–that our interest in “humane” executions has placed us in. We tend to think of lethal injection as the best method because it is the most medically supervised and modern practice used. But 7 percent of executions by lethal injections are “botched,” meaning 7 percent of the time someone made a mistake that could have left the prisoner sensible to pain or prolonged their death for many minutes or hours. Although it is less often used, the percentage of botched firing squad executions is zero.

Despite its cheapness and efficiency as a method of execution, the guillotine has not seen a resurgence of popularity either, although it was originally invented as a more humane alternative to hanging as a means of execution. If the condemned were acting rationally they would choose the guillotine rather than lethal injection as their method of choice because, like a firing squad, a prolonged execution is less likely. From that viewpoint, it is a more humane method. Yet we continue to employ lethal injection because it is considered a more humane method by the observers.

There is a case to be made for pharmaceutical companies to work together with states. If these companies want to improve humane executions, while keeping the death penalty intact, working with states rather than against them might be the best option. Pharmaceutical companies have access to the best research available and thousands of drugs that are used in life-saving therapies that might be helpful in executions as well. When companies decide to restrict the use of their drugs for executions, advocacy groups generally applaud them, but they may want to work together to improve the current system first. If lethal injection is really the best method, then these companies and advocacy groups might be able to better serve the people they wish to protect by advocating for better lethal injections, even if they are continuing to advocate for an outright ban at the same time.

Conclusion 

Pfizer’s announcement has been ridiculed by many as simply a PR move to appeal to a constituency that opposes the death penalty. Especially since those who support the death penalty don’t typically care enough about it to protest a company that opposes it. It is impossible to know if Pfizer’s concerns are genuine but they aren’t alone in their attempts to ban the use of these medications in a practice they find unethical. Companies commonly take moral stands on issues and either grant or refuse their support based on those values. But Pfizer and companies like it may be doing more harm to their cause than good. Rather than forcing states to make an end-run around their restrictions, thereby making executions less transparent and less humane, pharmaceutical companies should work with states to ensure that their products are being used as humanely as possible.

Resources 

NPR: Utah Brings Back Firing Squad Executions

Death Penalty Info: State Lethal Injection

Forbes: The Pharmacology and Toxicology of Execution by Lethal Injection

CNN: Clayton Lockett Oklahoma Execution

NPR: Supreme Court Says Oklahoma’s Use of Midazolam in Lethal Injection Is Legal

Wall Street Journal: Pfizer Tightens Controls to Block Use of Its Drugs In Executions

New York Times: Pfizer Blocks the Use of Its Drugs in Executions

Death Penalty Info: Some Examples Post-Furman Botched Executions 

Atlantic.com: The Case For Bringing Back the Guillotine

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Death Is Different: Restricting the Sale of Lethal Injection Drugs appeared first on Law Street.

Pfizer’s announcement on Friday that it will enforce the distribution restriction of its drugs that are used in lethal cocktails makes it the last FDA-approved pharmaceutical company to do so. Which means states that still carry out executions are forced to go underground to find drugs, or go back to very outdated options.

Pfizer stated:

Pfizer makes its products solely to enhance and save the lives of the patients we serve. We strongly object to the use of any of our products in the lethal injection process for capital punishment.

We are committed to ensuring that our products remain available and accessible to the medical professionals and patients who rely upon them every day. We have implemented a comprehensive strategy and enhanced restricted distribution protocols for a select group of products to help combat their unauthorized use for capital punishment.

Pfizer is the second largest pharmaceutical company in the world, and its stance on the issue is important. However, it’s hard to know exactly how big of an impact it will have on the actual business of executions because of the secrecy surrounding the process. There are 32 states still using death penalty, and of those, a majority are not open about their drug sources because of fear of  violent actions from execution opponents.

As Law Street has reported earlier, the lethal injection crisis has been going on for a few years. This is due to drug manufacturers’ refusal to provide drugs for this purpose, and export restrictions from European nations, where capital punishment is no longer in use. This has led to the use of drugs that could cause unnecessary suffering, or drugs from compounding pharmacies, resulting in some drawn-out and seemingly painful deaths. To not have to break the law to carry out executions, some states have actually turned to old-fashioned options such as the firing squad, electric chairs, or even gas chamber as possible solutions. Others have just delayed executions again and again, waiting to find the right drugs.

Emma Von Zeipel

Emma Von Zeipel is a staff writer at Law Street Media. She is originally from one of the islands of Stockholm, Sweden. After working for Democratic Voice of Burma in Thailand, she ended up in New York City. She has a BA in journalism from Stockholm University and is passionate about human rights, good books, horses, and European chocolate. Contact Emma at EVonZeipel@LawStreetMedia.com.

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The jury tasked with determining the fate of Boston Bomber Dzhokhar Tsarnaev decided on the death penalty last Friday, May 15, 2015. The jury found Tsarnaev guilty earlier this spring. Last week, the jurors determined that for six of the 17 counts for which he was found guilty, the death penalty should apply. That being said, how long it will take for the death penalty to actually be enacted remains unknown. Given the lengthy appeals process that is sure to follow, it may be many years.

Tsarnaev, along with his older brother Tamerlan Tsarnaev, was responsible for making the bombs that went off at the finish line of the Boston Marathon in 2013. The bombs killed three people and injured hundreds more, and sparked a lockdown while the two perpetrators were found. While during the manhunt that followed other significant crimes were committed, including the death of a Massachusetts Institute of Technology police officer, those six counts all related to the planting of the pressure-cooker bombs.

One of the most compelling grounds for appeal would appear to be the location of the trial–it was in Boston, where the atrocious events happened in the first place. The trial moved forward in this location despite the fact that the defense attempted to have the trial moved before it even began. The defense, led by notoriously anti-death penalty attorney Judy Clarke, argued that the case should not have been tried in Boston because it would be too difficult to find an unbiased jury there–after all, the events of the bombing were seriously disruptive and traumatizing to a city where the marathon is tantamount to a holiday. But the judge in the case, U.S. District Judge George A. O’Toole Jr., denied the move. That decision will most likely be one of the ones that Tsarnaev’s defense attorneys asks a higher court to examine.  Another likely avenue for appeal indicated by Tsarnaev’s defense team will be that they did not have sufficient time to present an argument against the death penalty.

Besides just the particularities of Tsarnaev’s case, such as the location and the timeline, there could be other grounds for appeal, including arguments over the constitutionality of the death penalty.

Any appeal arguments will be reviewed by the U.S. Court of Appeals for the First Circuit, also located in Boston. Depending on that decision, the case could end up being appealed all the way to the U.S. Supreme Court.

Given that the appeals process is such a long road, Tsarnaev most likely won’t receive the sentence he’s been given–to die by lethal injection–for many years. As the Guardian summed it up:

Though the Justice Department could attempt to fast-track executions in the name of public interest, death penalty experts expect the very quickest timeframe from Friday’s sentence to Tsarnaev actually being put on a gurney and injected with lethal chemicals would be at least ten years.

So, while Friday’s decision may have seemed to have an air of finality, it’s far from over. Tsarnaev’s legal battle will probably be in the works for years to come, whether he’ll ever actually be put to death is certainly questionable.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post This Process May Stop the Government From Executing Dzhokhar Tsarnaev appeared first on Law Street.

The United States is running out of lethal injection drugs. European pharmacies have refused to sell any more of their pentobarbital or other such supplies to America after they received information that the drugs were being used to kill inmates. Most of the E.U. has abandoned the use of capital punishment; the U.S. is the only Western country that still carries out executions.

As followers of the American penal system and/or fans of Gone Girl know, the rules regarding capital punishment vary from state to state. At present, 32 states in the U.S. enforce the death penalty, including Utah and Texas.

Lawmakers are seeking “back ups” to lethal injection. Utah Governor Gary Herbert signed a bill on Monday that allows death row prisoners to be killed by firing squad when execution by lethal injection is not available.

Read More: Lethal Injection Crisis: How States Are Solving the Problem

What are the procedures for a firing squad execution, you may ask? Officers volunteer to be part of a three-person shooting team. The anonymous trio shoots at a target over the inmate’s heart. One of the three guns that is used is loaded with a blank round, so nobody knows exactly which officer killed the inmate.

Read More: It’s Time to Bring Back the Firing Squad

If you are part of the 55 percent of Americans who support the death penalty for convicted murderers, you might agree with Fordham Law Professor Deborah Denno’s evaluation of death by firing squad:

It’s the only method we have in this country for which people are trained to kill. It appears the death is the quickest.

Other methods of capital punishment have also been discussed. The electric chair, death by hanging, and gas chambers were ruled out. Judge Alex Kozinski expressed his views on the use of another controversial killing method:

The guillotine is probably best, but seems inconsistent with our national ethos.

If you are an American who is not in favor of the death penalty, you might support exploring the other alternative—eliminating capital punishment altogether. Organizations such as Amnesty International are looking to get rid of the death penalty in America and educate people about the politics of its capital punishment system.

The change of policy in Utah has brought national attention to issues of justice and morality within the U.S. prison system. Will this issue incite a push for reform? Perhaps it is necessary to re-evaluate our country’s “national ethos,” to borrow a phrase from Judge Kozinski.

Corinne Fitamant

Corinne Fitamant is a graduate of Fordham College at Lincoln Center where she received a Bachelors degree in Communications and a minor in Theatre Arts. When she isn’t pondering issues of social justice and/or celebrity culture, she can be found playing the guitar and eating chocolate. Contact Corinne at staff@LawStreetMedia.com.

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Hey y’all!

I’m a Texas girl and you know we love our death penalty down here, but this week it was interesting to discover that Utah is in discussions to bring back the firing squad as one of its execution methods.

Learn more about the death penalty debate.

Last Friday, Utah’s House of Representatives voted 39-34 to approve the firing squad idea. Both houses of the state legislature are controlled by Republicans, and Republican Gary Herbert sits in the Governor’s office. Herbert has kept a tight lip about whether or not he would sign the bill in question.

Apparently the firing squad has not been a very distant memory in the Beehive State. Naturally the state offers the typical lethal injection, but it also allowed the authorization of firing squads to inmates who selected that form of execution over lethal injection prior to May 3, 2004. While death-row prisoners still have the right to choose that option, the state might bring it back on a wider scale because of new concerns about lethal injection not working correctly. Advocates of this bill cited cases from Arizona and Colorado where the lethal injection was botched and led to Supreme Court challenges of that method of execution.

Read more about America’s lethal injection crisis.

Of course, in addition to these advocates there are also those who oppose the bill, namely the 34 representatives who voted against it. Many of those believe that the death penalty should be abolished altogether.

Rep. Paul Ray, a Republican from Clearfield who is sponsoring this measure, claims that a team of trained marksmen is more humane and provide much faster death than the drawn-out process of a possibly botched lethal injection. Now the bill in question would simply call for a firing squad if the state can not get the drugs needed for the lethal injection 30 days in advance of the execution. What is interesting is that there are several different kinds of lethal injection. Some states, including Utah, use a three-drug cocktail, whereas other states like Texas use a single drug.

Now that this has passed in the Utah House it is in the hands of the Senate and no one really knows which way it will go.

If you are curious, this website has a very interesting list of what all the states allow or did allow as a form of execution.

Allison Dawson

Allison Dawson was born in Germany and raised in Mississippi and Texas. A graduate of Texas Tech University and Arizona State University, she’s currently dedicating her life to studying for the LSAT. Twitter junkie. Conservative. Get in touch with Allison at staff@LawStreetMedia.com.

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It is getting harder and harder for states to kill people.

Four executions by lethal injection have been botched in the past calendar year. In July, it took two hours for an Arizona inmate to die after he was given 15 times the dose of drugs usually used. And, with the supply of those drugs running out fast, it looks like America is in store for even more of these gruesome mishaps. Cries are growing louder and louder for an end to the death penalty as more and more executions are botched.

Yep, neither the number of innocent people on death row nor the inhuman delays that keep prisoners guessing if and when they will be killed are responsible for the most recent national conversation about the death penalty. Instead, it’s a lack of efficiency in our execution tactics that has Americans up in arms.

Don’t fret, death penalty supporters! There is a simple solution to this problem. It just isn’t as pretty or as comforting as lethal injection.

A federal judge recently called for replacing lethal injection with the firing squad, and his argument is pretty sound:

Lethal injection uses medication to make an execution look peaceful. Since one of the drugs used paralyzes the inmate, all anyone sees is a person slowly falling asleep. U.S. 9th Circuit Court Chief Judge Alex Kozinski has a problem with that:

Executions are, in fact, brutal, savage events, and nothing the state tries to do can mask that reality. Nor should we. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

Kozinski’s argument against lethal injection is a moral one. He believes that America needs to look at the ugliness of executions and reckon with what they have wrought upon their fellow man.

I agree that the firing squad should be used, but I would like to go one step further in arguing why. The firing squad isn’t just a moral solution to our death penalty crisis. It’s also a much more practical way to end the lives of our most degenerate citizens. It is time for this nation to abandon its experiment with lethal injection and join Somalia in the practice of shooting its citizens.

Lethal injections have become a crapshoot, where people who aren’t even medical officials mix untested drugs to try their best to kill someone. There is a lot of room for error.

Firing squads, on the other hand, are almost impossible to screw up. Five marksmen shoot the sitting and sedated inmate in the heart with rifles. One of the marksmen is firing a blank so none of them know who fired a kill shot, but the odds of four trained shooters missing their target is highly unlikely. A guaranteed quick, albeit bloody, death is the primary benefit of the firing squad.

But wait, there’s more! Death by firing squad is one of the only execution tactics that preserves the organs for donation (except for the heart, obviously). There are tangible benefits!

Sure, like all good things, there are some downsides to the firing squad. For one, shooting people is surprisingly expensive. The salaries of the five shooters and the cost of the rifles, chair, hood, and sedative all add up to the hefty price of $165,000. But, can we as a society really put a price on justice?

Well, yes. The current price of justice is $1,286.86. That is how much it costs to kill someone with the newest drug cocktail. You know, the one that isn’t even working the way it is supposed to. I’m willing to pay a little more in taxes if it means fewer criminals gasping and wheezing for two hours on a prison gurney.

There’s also the slight problem that being shot in the heart by four bullets is a gruesome way to die. That is why we as a society decided on lethal injection in the first place. All we see is a bad person falling asleep. It’s a sanitary and supposedly peaceful end.

But, as Kozinski reminds us, executions are not supposed to be pretty. The state is murdering one of its own citizens. It is supposed to be gruesome. We shouldn’t hide from this reality. If we are going to allow states to continue killing the people they are supposed to protect, we should accept the barbaric nature of this policy. There are few forms of death that embrace this philosophy more than exploding a man’s heart with four small pieces of lead.

America needs to change its course if lethal injections continue to be botched. The firing squad is the most effective way of killing criminals quickly and humanely.

Or, we could just repeal the death penalty, save billions of dollars, and bring our criminal justice system up to the ethical standard of the rest of the developed world.

But that would be silly. Open fire!

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Eric Essagof (@ericmessagof) is a student at The George Washington University majoring in Political Science. He writes about how decisions made in DC impact the rest of the country. He is a Twitter addict, hip-hop fan, and intramural sports referee in his spare time. Contact Eric at staff@LawStreetMedia.com.

Featured image courtesy of [T Woodward via Flickr]

Eric Essagof

Eric Essagof attended The George Washington University majoring in Political Science. He writes about how decisions made in DC impact the rest of the country. He is a Twitter addict, hip-hop fan, and intramural sports referee in his spare time. Contact Eric at staff@LawStreetMedia.com.

The post It’s Time To Bring Back The Firing Squad appeared first on Law Street.

A federal judge ruled last week that California’s death penalty system is unconstitutional because it violates the Eighth Amendment protection against cruel and unusual punishment. This decision is notable, but not in the way you might think. U.S. District Judge Cormac Carney did not rule the death penalty itself to be unconstitutional, but rather the conditions that accompany it–namely the long wait for California’s death row prisoners.

California has not executed an inmate since a different federal court put a hold on executions in 2006. U.S. District Court Judge Jeremy Fogel ruled that the use of the death penalty was cruel and unusual because the technicians administering the drugs were mostly untrained and had little experience with the drugs they were using. As a result, California had to stop executing inmates until they came up with new protocols for humane executions. This has not happened yet, so the ban has remained.

Yet California has not stopped giving felons death sentences. They currently have 748 inmates on death row, the most of any state.

Carney argues that leaving the fate of these prisoners uncertain is more cruel and unusual than killing them. In his eyes, prisoners have the right to know if they are going to die or not. Here’s a notable excerpt of his ruling:

“California juries have imposed the death sentence on more than 900 individuals since 1978. Yet only 13 of those 900 have been executed by the State. Of the remainder, 94 have died of causes other than execution by the State.”

Carney’s problem with California’s death penalty is not the pain it causes but the arbitrariness of it all. More death row inmates in California have died in their jail cells than have been executed. None of these inmates knew how their end would come. There is no way to tell which death row inmates will ever actually be killed. In fact, the death of an inmate is often not based on legitimate factors, such as severity of crime, but on unpredictable factors like length of appeal.

Carney argues that a death penalty must be administered fairly, and not just based on who can appeal their case the longest. Inmates with a shorter appeals process have a greater chance of being killed once California sorts out its implementation problems.

This decision is notable because it is the first time that a federal judge has ever ruled that delays in death row proceedings are a form of cruel and unusual punishment. This is especially interesting because the Supreme Court has previously ruled that delays are not a form of cruel and unusual punishment. Carney seems to be bucking a precedent set by the highest court.

Granted, there will be an appeal. It is possible, even likely, that an appeals court will side with the Supreme Court and rule that delays are not cruel and unusual but merely a normal part of the death penalty process. Still, the fact that a court ruled that a prisoner has the right to know if or when he or she will be killed is significant.

California could potentially get the death penalty back if they sped up the process with which they kill their criminals. But now that a new precedent has been set, states with a large backlog of death row inmates should prepare for some legal challenges.

The list of states with many inmates on death row may have new additions soon–states are running out of the drugs necessary for lethal injection, and experiments with other drug cocktails have not gone well. Some states are continuing with experimentation. Some are trying out new and untested drugs. However, it is likely that many will have to wait for a more viable option to present itself. It is possible that this waiting could be found to be cruel and unusual punishment for those on death row. Only time will tell, but this ruling has the chance to change the nature of capital punishment in the United States.

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Eric Essagof (@ericmessagof) is a student at The George Washington University majoring in Political Science. He writes about how decisions made in DC impact the rest of the country. He is a Twitter addict, hip-hop fan, and intramural sports referee in his spare time. Contact Eric at staff@LawStreetMedia.com.

Featured image courtesy of [Michael Coghlan via Flickr]

Eric Essagof

Eric Essagof attended The George Washington University majoring in Political Science. He writes about how decisions made in DC impact the rest of the country. He is a Twitter addict, hip-hop fan, and intramural sports referee in his spare time. Contact Eric at staff@LawStreetMedia.com.

The post Cruel and Unusual: California Death Penalty Delays appeared first on Law Street.

Due to lethal injection crisis in America — dwindling access to typical lethal injection drugs — states across the nation now either have to come up with new ways to execute their death row inmates or abandon capital punishment. So far, they have all chosen to continue executing death row inmates. Here is everything you need to know about botched lethal injections, new drugs, and the return of some antiquated methods of execution.

How does lethal injection work?

This video from NextMedia Animation gives a quick overview of how the process works. Do not worry, it is safe for the squeamish:

There are three drugs at play in a traditional lethal injection scenario. The first is Sodium Thiopental, a barbiturate which acts as an anesthetic to make the prisoner unconscious. Second is pancuronium, a muscle relaxant that paralysis the prisoner, which stops his or her lungs from working. The paralyzing effect of this drug is also used so that the viewing audience of the execution does not have to see some of the body movements that might take place during the execution. Finally, potassium chloride is injected into the prisoner. This drug stops the heart from beating. If all goes right, the process should be over in eight and a half minutes, and the prisoner should be too unconscious to feel any pain.

What problems has lethal injection run into recently?

States are having trouble accessing the three drugs necessary to complete a lethal injection. While there is no shortage of the drug, pharmacies and drug manufacturers have stopped selling the drugs to states for the use of lethal injection. Unsurprisingly, companies do not like their products being linked to death. Drug companies want people to connect their brand with saving lives, not ending them. European nations, where most of the pharmacies that make these drugs are located, have banned the export of these drugs as part of an effort to ban capital punishment worldwide.

European nations no longer use the death penalty, and most likely will not return to it in the near future. Watch this British discussion about the death penalty to see how they feel about not having capital punishment. Notice that only one panelist wants to bring the death penalty back, and that the rest of the panel, made up of British politicians and public figures, speaks loudly against her:

Should we continue using lethal injection?

Drug Replacements

It is possible for states to continue using lethal injections, with a few changes. For one, they have to get new drugs from a compound pharmacy. These are pharmacies that, instead of mass-producing drugs, make drugs specifically for one patient. They are expensive, but they are also the only option for states that still want to still use lethal injection.

However, even these small pharmacies do not want to be publicly associated with the death penalty. To sidestep this problem, states have just decided to keep the source of the drugs secret. This has outraged critics of the death penalty, who say that death row inmates deserve to know how they will be killed. A few convicted felons have even sued to try and stay their executions by arguing that this secrecy constitutes cruel and unusual punishment. Their claim is that, since these drugs have potentially never been tested before, there is no guarantee that their death will be painless.

Questions of Humaneness

Even prior to this access problem, lethal injection was not always painless. While 3 percent of all executions go wrong, lethal injections have the highest rate for error.

According to Professor Robert Johnson, an expert on prisons and the death penalty at American University’s Department of Justice, Law, and Criminology, the new drugs and the pharmacies supplying them might be the cause of even more failed executions.

“The compounding pharmacies are not closely regulated by the FDA,” Johnson said, and continued with, “there are concerns that the drugs they produce might vary in strength. Some of the more recent executions involving these compounding drugs have had more complications.”

Apparently, more people being killed by these compounding drugs are seen gasping for air as a result of the paralyzation of their lungs. They are not supposed to be awake for this.

“It’s likely that if the execution goes wrong that the person will asphyxiate which, without anesthesia, will be very painful,” Johnson said.  “A certain number of these cases are quite likely intensely painful but the person cannot show it because they are paralyzed.”

What’s worse is that the people administering these drugs are not doctors. The American Medical Association (AMA) highly discourages doctors from participating in lethal injections, so the people executing these prisoners are often not medically trained, which makes errors much more likely.

“It’s a pretty risky ordeal,” Johnson said.

The results of a botched lethal injection are not pretty. Let’s take, for example, the case of Clayton D. Lockett’s execution in Oklahoma on April 28, 2014. After the first injection, which is meant to protect the prisoner from feeling any pain, the executioners started injecting the next two drugs. It was at this point that Lockett woke up.

The second and third drugs in lethal injection are incredibly painful without an anesthetic. Imagine your entire body going into paralysis and your heartbeat stopping while you are still awake. This is what Lockett experienced. He tried to sit up and then actually spoke. It took nearly 45 minutes for Lockett to eventually die of a heart attack.

Lockett did not receive the drugs commonly used in a lethal injection. The execution still used potassium chloride to stop the heart, but the sedative and muscle relaxant were replaced with midazolam and vecuronium bromide from a compound pharmacy. Oklahoma refused to disclose why these drugs had been chosen and where they had bought them. The Supreme Court of Oklahoma ordered a stay of his execution, but quickly removed the stay after a state legislator threatened the justices with impeachment.

There is definitely a case to be made that lethal injection is the most humane way for the state to kill someone when done correctly– the operative words. That is why the overwhelming majority of executions today are done this way. However, there are too many disturbing stories about botched injections to argue that it is always humane, and the access issue has made these stories too common.

Watch Dr. Joel Zivot, and anesthesiologist, explain why he does not think that lethal injection is humane on Dr. Sanjay Gupta’s CNN show, “SG|MD”:

Are there options besides lethal injection?

Since Lockett’s execution was botched so badly, other states might be wary to continue using lethal injection, even though multiple state Supreme Courts have ruled that keeping the drugs secret is constitutional. That might be why some states are reverting to older forms of execution.

Return to Electrocutions

Since the Supreme Court reinstated the death penalty in 1976, there have been 1,379 executions. Only 158 of them have been electrocutions. Yet, Tennessee has, in the wake of a lack of access to lethal injection drugs, recently decided that the electric chair will be their primary form of execution. This is significant for one reason: while there are states that have the option of the electric chair, Tennessee is now the only state that does not give death row inmates an option of another form of execution. While electric chair is a secondary option for prisoners to choose in some states, death row inmates in Tennessee will now be forced to use the electric chair.

This clip from Aileen: Life and Death of a Serial Killer explains how the electric chair works.

Death penalty opponents and death row inmates are expected to challenge this new law in courts. The Supreme Court upheld the electric chair in 1890, but it is possible that they might find it cruel and unusual in a modern setting. To make your own judgement, read this article on Vice.com explaining how the electric chair kills someone.

As you can see, it is not nearly as pleasant as lethal injection. The chair basically cooks whoever is sitting in it. And that is when it goes right. In Florida on July 8, 1999, Allen Davis screamed and bled profusely from his nose during his execution.The chair killed him but he ended up covered in blood and burns. His case led Florida to abandon the electric chair as a method of execution. There are pictures of his body after the execution, but they are VERY graphic.

It is hard to argue that this is the most humane way of killing someone, but that does not mean that states are not allowed to use it as a primary execution form. Because the Supreme Court ruled that the electric chair is not cruel and unusual punishment, states can continue to use it. That is, until somebody challenges them in court. Since the case deeming the chair constitutional was so long ago, there is a chance that the Supreme Court might overturn the ruling. It is not an unrealistic scenario. Nebraska’s Supreme Court ruled that the electric chair was cruel and unusual punishment in 2008.

Return to Firing Squads

A number of states, including Oklahoma, have contemplated returning to the firing squad as their primary form of execution. Oklahoma is currently the only state that allows for death by firing squad, and only as a secondary option.

This news report about the execution of Ronnie Lee Gardner in 2010 by firing squad provides an animation that shows how a firing squad works:

As old-fashioned as it sounds, the firing squad actually has some benefits. For example, it is the only form of execution that preserves most of the body’s organs so that they can be donated. Also, when the marksmen are good, it is a quick form of death.

However, a firing squad is expensive. For example, it costed 165,000 to execute Gardner. The majority of this money went to the salaries of the marksmen, but some also went toward the guns and ammunition used, the chair Gardner sat in, and the sedative given to Gardner before the execution began. The cost would probably go down slightly if Utah ever had to do this again, because they now have all of the equipment, but it would still be expensive. It is certainly a far cry from the $1,286.86 spent by Texas to kill Keith Thurmond with a lethal injection in 2012.

Of course, the biggest problem with both the firing squad and the electric chair is that they are violent forms of execution that the American people are potentially not ready to stomach.

“With lethal injection, you could lull yourself into a sense of security that this was a painless procedure,” Johnson said, and continued with, “you could live with that.”

It costs that much to kill someone?

Yes, executions are expensive. It is even more expensive to keep someone on death row. This is because capital punishment cases take significantly longer to resolve and result in more appeals than a life-without-parole case.

“Because someone’s life is at stake, the cases are more contested and likely to have more experts involved,” Johnson said.

Many states also keep death row inmates in expensive high-security confinement. According to a report from the National Bureau of Economic Research, America spent $1.6 billion on capital punishment from the years of 1982-1997.

Should the death penalty be abolished altogether?

That is a complex question, and there is not enough space in this article to answer it. To get an idea of the moral arguments for and against the death penalty, watch this debate between The Nation and National Review Magazine:

In the absence of a new drug discovery, states will either have to prepare for more botched lethal injections or switch to a more violent form of execution. Support for the death penalty has consistently declined in the past two decades, and incidents like the Lockett death might be too much for those that still approve of it.

Resources

Primary

SCOTUS: Majority Opinion in Baze v. Rees

Additional

Hospira: Position on Use of Our Products in Lethal Injections

Death Penalty Information Center: Everything You Need to Know About Compounding Pharmacies

Guardian: Clayton Lockett Writhes on Gurney in Botched Procedure

Slate: Gov. Mary Fallin is Responsible for Clayton Lockett’s Botched Execution

Bloomberg: Teva to Block Drug for U.S. Executions

Bloomberg: Europe Pushes to Keep Lethal Injection Drugs From U.S. Prisons

The New York Times: Outrage Across Ideological Spectrum in Europe Over Botched Execution

Bloomberg: Slow Death in Oklahoma Was Europe’s Doing

Death Penalty Information Center: Descriptions of the Different Execution Methods Used in America

Deseret News: Inmate Threatens to Sue if State Won’t Let Him Die by Firing Squad

Washington Post: The Recent History of States Contemplating Firing Squads and Other Execution Methods

Tennessean: Methodists Want Tennessee to Reconsider Electric Chair Law

MSNBC: Without Lethal Injection, Americans Back Electric Chair, Hanging

Salon: GOP’s Firing Squad Idiocy: The Hypocrisy of ‘Humane Executions’

Eric Essagof

Eric Essagof attended The George Washington University majoring in Political Science. He writes about how decisions made in DC impact the rest of the country. He is a Twitter addict, hip-hop fan, and intramural sports referee in his spare time. Contact Eric at staff@LawStreetMedia.com.

The post Lethal Injection Crisis in America: How States Are Solving the Problem appeared first on Law Street.

The United States will be able to report a lower number of executions in 2013. Thirty-nine people were executed in nine different states, a 10% reduction from 2012. Twenty-three of those executions took place in just two states–Florida and Texas. To put this in context, in 1999, there were 98 people executed for their crimes. In addition, eighty new death sentences were handed out, which is a dramatic shift from 315 just 19 years ago.

There has also been a slow but perceptible trend of death penalty abolition on the state level. There are now 18 states and the District of Columbia that have abolished the death penalty. Six of these states have done so since 2007.

So, why? Why are we seeing a reduction in executions?

There a few different viable answers. The first is a declining availability of the drugs used in lethal injection. The vast majority of executions in the United States are done by lethal injection, although there are occasionally exceptions, and some states still allow methods such as firing squads or hanging.

But the states that intend to carry out death penalty sentences by lethal injection have run into a problem. Most of the drugs used come from European-based companies, and in 2011, the European Commission put extremely tight regulations on the import of those drugs. Some European drug companies, such as Danish-based Lundbeck which produces one of the most efficient and popular drugs for use during a lethal injection, flat out banned its use during executions. The death penalty has been abolished in all European states with the exception of Belarus.

As a result, states are scrambling to find a way to carry out lethal injections. Some states have experienced with drug cocktails, and others use untested drugs. According to Richard Dieter, Executive Director of the Death Penalty Information Center, “the states are scrambling to find the drugs. They want to carry out these executions that they have scheduled, but they don’t have the drugs and they’re changing and trying new procedures never used before in the history of executions”. Some lawsuits have alleged that this experimentation could be considered cruel and unusual punishment and has led to stays on executions in the state of California, among others.

Another proposed reason for the drop in executions is the discovery of evidence that proves the innocence of many people who had been previously executed. Improved forensic technology and DNA testing show that trials do not always result in justice. Groups such as the Innocence Project attempt to exonerate people who have been convicted of crimes, and since 1989, there have been 311 post-conviction exonerations based on DNA evidence alone. Eighteen of those people were awaiting their executions on death row.

Finally, the trend may be attributed to a number of other reasons. Part of it may be moral–the US stands essentially alone among its allies in its use of the death penalty. Another reason may be that most violent offenders die in prison anyways, which makes prosecutors and judges less likely to push for it.

Whatever the reason for the diminished use of the death penalty over the last few years, it will be interesting to see if it sticks. If those who attribute the shift to the inability to get the appropriate medications are correct, we should see an uptick in executions as that issue is resolved. If it’s more about the moral constraints, maybe executions will continue to lessen. Either way, capital punishment in the US will change.

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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Featured image courtesy of [CACorrections via Wikipedia]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Is the US Done With the Death Penalty? appeared first on Law Street.