Fordham Law

America Returns to the Lethal Injection Status Quo With 3 Executions in 24 Hours

Deborah Denno in US News, June 19, 2014

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America Returns to the Lethal Injection Status Quo With 3 Executions in 24 Hours

By Tierney Sneed

The execution of John Ruthell Henry, charged with the murder of his wife and her 5-year-old son, in Florida Wednesday evening marked the third execution in a 24-hour period since the botched lethal injection in Oklahoma in late April. Inmates in Georgia and Missouri were executed by lethal injection late Tuesday evening and early Wednesday morning. Reports from the prisons suggest all three executions went as planned, though that did little to quiet concerns from critics about the secrecy policies regarding the drugs being used in those three states and elsewhere in the country in the face of a drug shortage crisis.

“These issues about the things that make execution risky are not going away. There’s been no change in these terrible and rampant secrecy policies,” says Cassy Stubbs, director of the American Civil Liberty Union’s Capital Punishment Project.

[VOTE: Should Oklahoma's Botched Execution Force a Rethink of the Death Penalty?]

Oklahoma inmate Clayton Lockett died from a heart attack 30 minutes after his execution was halted when it became clear that the state’s new three-drug lethal injection mix had not been properly administered, causing Lockett extreme pain. An autopsy showed that the executioner attempted to insert the IV in Lockett’s groin – known to be more painful and riskier than other entry points – and the incident spurred new scrutiny of lethal injection practices in states where the death penalty is most prevalent. Even President Barack Obama weighed in, calling the matter “deeply troubling.” Before Lockett’s execution, the Ohio use of an untested combination of drugs on Dennis B. McGuire in January caused what appeared to be a painful and prolonged execution; also in Oklahoma in January, an inmate reportedly said, “I feel my whole body burning” during his lethal injection via a controversial mix of drugs.

“Disappointingly, I think there’s a short-term memory problem in terms of botched executions because we have a long history of botch executions," says Antonio Ginatta, U.S. advocacy director at Human Rights Watch, which opposes the death penalty. States waited until the collective outrage died over Clayton Lockett to resume lethal injections, he adds.

“We’ll have another botch execution and then the outrage will startup again,” says Ginatta.

A number of factors have made lethal injection drugs harder to come by, prompting death penalty states to turn to more controversial methods.

A shortage of injectable drugs came to a head in 2008. In 2011, the manufacturer of sodium thiopental, a key drug in lethal injection procedures, stopped producing the drug entirely, while the European Union placed a ban on exporting drugs to the United States for the purpose of executions. The FDA also banned importation of the sodium thiopental from foreign sources, as it could not be properly regulated. States began depending on other drugs, like the seizure medicine pentobarbital, as well as combinations produced by local compounding pharmacies rather than large scale manufacturers. Claiming that their drug sources faced a backlash from anti-death penalty activists, a number of states passed laws or revised prison procedures to keep their sources secret while critics worried that the mixes being used were experimental at best and even at times contaminated.

“It’s a little frustrating to think about these states that favor the death penalty – Georgia, Texas, Mississippi, Florida – these are states that can’t even trust the government to run health care exchanges but they trust the government to kill someone in secret using a secret drug,” Ginatta says.

The lawyers for all three inmates issued court appeals for stays all the way up to the Supreme Court, and in all three cases – presented to Justice Clarence Thomas in Florida and Georgia, and Justice Samuel Alito in Missouri – the stays were denied. The Supreme Court did halt the Missouri execution of Russell Bucklew, whose lawyers argue has a medical condition that make it more likely his execution would be painful and prolonged. Missouri also refuses to reveal the source of its lethal injection drug and the case is now back in federal appeals court.

Meanwhile, litigation continues in states enacting the secrecy policies. According to Fordham Law School professor Deborah Denno, a leading legal expert on the death penalty, part of the challenge for lawyers defending death row inmates is that the secrecy laws are so broad in some places that even the court system is not privy to the practices and drugs being used in lethal injection.

“One of the big problems attorneys have so little information on which to go by on making any kind of challenge. They're just not provided with sufficient enough information,” Denno says. She also points out that the problem of botched executions precedes the drug shortage issue.

The Supreme Court has ruled only once on the constitutionality of lethal injection – whether it violates the 8th Amendment’s prohibition of cruel and unusual punishment – in its 2008 Baze v. Rees decision. While the court ruled 7-2 in favor of the practice, it offered seven opinions, leaving the door open for more challenges to current procedures down the road.

“There has been a real questioning of what’s been going on. Nonetheless, every court has gone ahead and some of these lethal injection laws have been upheld,” Denno says. Considering that it was more than 30 years after lethal injection was first legalized that the Supreme Court took up a case on it, “It’s going to take a lot for the Supreme Court to hear a case,” she adds.

The next execution scheduled to proceed is in Florida for Eddie Wayne Davis, a convicted murderer, whose lawyer is arguing may have a medical condition that will prevent the lethal injection drugs from knocking him unconscious. Last week, a circuit judge denied his lawyer's request for a delay for his July 10 execution date to look into his condition.

“There's no question that we’re going to have another botched execution – the question is when,” Stubbs says.