WASHINGTON — Legal scholars and anti-death penalty advocates are speculating about the possible impact the U.S. Supreme Court could have when it hears arguments next month on the constitutionality of Oklahoma’s controversial three-drug protocol for carrying out executions by lethal injection.
Florida has already stayed the scheduled execution of a convicted murderer until the Supreme Court’s ruling, which is expected sometime this summer. Some states, including Pennsylvania and Oregon, have moratoriums in place while they review their respective death penalty protocols.
Meanwhile in Virginia, the state Catholic conference and allies in late February helped defeat a bill, supported by Gov. Terry McAuliffe, which would have shrouded almost everything about state-sponsored executions in secrecy. If passed, SB 1393 would have made it virtually impossible for the public to know what pharmacies provide drugs for lethal injections or even what drugs are used to execute inmates.
Virginia correctional officials argued the bill was necessary because manufacturers would be less willing to provide drugs for lethal injections if they are liable to public scrutiny. But Jeffrey Caruso, executive director of the Virginia Catholic Conference, told the Register that the public has a right to information on state-sponsored executions.
“Especially in light of these botched executions that have happened in other states,” Caruso said.
Death by lethal injection is viewed as being more problematic than ever, largely because many pharmaceutical companies in recent years have stopped producing or selling drugs that were traditionally used to carry out executions. As a result, states have been scrambling for other sources, including compound pharmacies not regulated by the federal government.
The use of compound pharmacies raises concerns about the quality of drugs used in executions and whether those drugs are responsible for inflicting excruciating pain on condemned inmates. But scrutinizing those pharmacies and their products is often difficult because several states — including Arizona, Georgia, Missouri and Oklahoma — have passed laws to conceal the drugs and the manufacturers that supply them.
The death penalty landscape in the United States is in such flux that lethal injection protocols differ not only from state to state, but even from one execution to another in the same state, said Deborah Denno, a law professor at Fordham University who has studied and written on the death penalty.
“The states have been changing execution methods continuously,” Denno said. “What we saw in Virginia is regrettable that this continues to happen, but in some ways it doesn’t surprise me. The protocols, the kind of drugs they are using, are so problematic that they wouldn’t be able to use them unless they’re hidden in secrecy.”
Next month, the U.S. Supreme Court will review lethal injections in Oklahoma to determine if they violate the Constitution’s Eighth Amendment prohibition against cruel and unusual punishment. The case — Glossip v. Gross — will be the high court’s first examination of lethal injection since it upheld Kentucky’s protocols in 2008.
“It will be interesting to see what the court is going to do,” Denno said. “The court could make it a very narrow decision or they could make it broader. We’ll have to see how this plays out.”
At issue in Oklahoma is the three-drug cocktail used in executions: midazolam, a sedative that renders the inmate unconscious, a second drug that paralyzes the body and a third that stops the heart. It is virtually the same procedure Oklahoma used last year to execute Clayton Lockett, a convicted murderer and rapist.
During his April 2014 execution, Lockett writhed in pain, clenched his teeth and strained to lift his head when he was injected with a previously unused combination of three drugs. Officials halted the execution after 20 minutes, but Lockett later died from a heart attack, according to published reports. Three months earlier, another Oklahoma man, Michael Lee Wilson, a convicted murderer said he felt his “whole body burning” when he was executed by lethal injection.
U.S. Supreme Court
In January, the U.S. Supreme Court said it would consider the petition, which was filed by three inmates on Oklahoma’s death row. The decision followed the high court’s ruling to allow Oklahoma to execute Charles Frederick Warner, who was convicted of raping and murdering an 11-month-old girl. When the execution began, the Associated Press reported that Warner said, “My body is on fire.”
In a dissent to the high court’s ruling that allowed Warner’s execution, Justice Sonia Sotomayor conceded that the petitioners deserved punishment for having “committed horrific crimes.” However, Sotomayor wrote, “But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.”
Karen Clifton, executive director of the Catholic Mobilizing Network to End the Death Penalty, is hopeful about the Supreme Court’s decision to examine the constitutionality of Oklahoma’s three-drug lethal injection cocktail. She quoted Sister Helen Prejean’s comment that there is “no humane way to kill a conscious, imaginative human being.”
“We are pleased [the Supreme Court] is willing to address this cruel and unusual punishment,” Clifton said, adding that “recent botched executions have unmasked the true horror of what happens when we seek to take a person’s life by using drugs that are not legal to euthanize animals in some states.”
Said Clifton, “We see this [Supreme Court] review as the opportunity to take another step forward on the road to upholding the sanctity of all life and ending executions in our country.”
The Catechism of the Catholic Church states that, although the Church’s traditional teaching does not exclude recourse to the death penalty when necessary to protect society, in modern nations “as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm — without definitely taking away from him the possibility of redeeming himself — the cases in which the execution of the offender is an absolute necessity ‘are very rare, if not practically nonexistent’” (2267).
Because Florida’s lethal injection protocol is “virtually identical” to Oklahoma’s, the Florida Supreme Court in mid-February stayed the scheduled execution of Jerry William Correll, who is convicted of murdering his wife, their 5-year-old daughter and two in-laws. Caruso, from the Virginia Catholic Conference, said his state’s protocol is the same as Florida’s.
“To the extent that a lot of states are using the same or similar protocols, what the [Supreme Court] decides could have implications well beyond Oklahoma, and could probably even rewrite the rules on what appropriate lethal injection protocols are,” Caruso said.
Courts in several states are already examining the issue. In late February, the Arkansas Supreme Court heard arguments on whether a 2013 law grants the state Department of Corrections too much authority in setting lethal injection protocol.
In Georgia, state correctional officials postponed two executions after a lethal injection drug batch appeared to be “cloudy” just hours before one execution was scheduled to be carried out. The Georgia Department of Corrections said it delayed the executions out of an “abundance of caution” while officials analyzed the drug supply.
“There has to be some credit to the fact that they said there was a problem,” Denno said. “But if you think about it, they didn’t have to do that, and nobody would have known. In the past, they might have used the drugs anyway, but I think the specter of what we saw in Oklahoma makes it so that people are concerned that it would lead to a botched execution and considerable negative attention. I think that is what the motivation was in Georgia.”
Motivated by bad publicity or not, other states are considering legislation to reform or even abolish the death penalty. Last month, a bill to eliminate capital punishment passed the Arkansas Senate Judiciary Committee by a voice vote. A similar bill in Montana was approved by a House committee, but failed on a tied-vote before the full House of Representatives. Legislation to repeal the death penalty has been introduced this year in Nebraska’s state legislature.
Meanwhile, other states are considering alternative means to execute prisoners. Bills to bring back firing squads have been introduced in Utah and Wyoming. Last year, Tennessee passed a law that makes the electric chair a backup method of execution.
In Virginia, the General Assembly last year debated a bill that would have made the electric chair the default method of executing prisoners. That bill failed, said Caruso, adding that Virginia state law currently allows condemned inmates to choose between lethal injection and the electric chair.
“We’ve had two so-called solutions in consecutive years to make sure that executions proceed,” Caruso said. “What I’m hoping is that after the failure of both of these bills we can shift the conversation and really look more broadly at what some of the problems are in our death penalty system.”
Said Caruso, “I hope we can change the conversation.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.