by Ana Lopez Garcia
Lethal injection has become a common method of execution in states that impose the death penalty.[1] States typically use a three-drug lethal injection protocol including an anesthetic, a paralytic agent, and a drug that stops the heart.[2] The continued shortages of drugs for executions has forced states to look for new drugs to use, including drugs that may be inappropriate for executions.[3]
As of 2017, Florida has introduced a controversial new lethal injection protocol[4]; which the Florida Department of Corrections issued the new procedure on January 4, 2017.[5] Immediately, there were concerns expressed over the two new drugs in Florida’s new lethal injection protocol.[6] One new drug, etomidate, has never been used in an execution;[7] and the other new drug, potassium acetate, was only used accidentally on one inmate due to a mistake.[8] In effect, Florida’s new injection protocol is based upon very little, if any, support.[9] The lack of testing on the drugs for use in executions and its lack of use in previous executions leads to uncertainty as to the drug’s effectiveness in preventing pain in executions.[10]
Changes to lethal injection drug protocols are, in part, due to states not having enough of the drugs to carry out executions.[11] Florida’s stock of potassium chloride is likely to run out shortly, and, as a result, Florida has started stocking its new selection, potassium acetate.[12] Other states, such as Arizona, Arkansas, Louisiana, and Ohio, have delayed executions due to their lethal injection drug supplies dwindling down or their inability to secure lethal injection drugs.[13] All of this stems from ongoing issues with drug manufacturers that do not want to sell drugs for use in executions.[14] For example, Pzifer, a pharmaceutical company, has announced that it would not sell drugs to distributors, or other purchasers, who would sell the drugs to correctional facilities for lethal injections.[15]
Florida exemplifies results from the shortage of, or inability to obtain, lethal injection drugs.[16] As other states continue to experience similar situations, it is likely that method of execution claims will be pursued.[17] Specifically, defendants may argue post-conviction these atypical drugs are untested for use in executions, and “create an unacceptable risk of severe pain,” which violates the Eighth Amendment’s prohibition against “cruel and unusual punishment.”[18]
The Supreme Court has addressed some of these issues in Glossip v. Gross, and expanded on challenging the lethal injection method of execution.[19] In Glossip, Oklahoma used midazolam[20] as part of its three-drug lethal injection procedure because it was unable to acquire the drugs it used previously.[21] This was due to pharmaceutical companies restricting the usual drugs Oklahoma used for their lethal injection protocol.[22] There, the Supreme Court held that the defendants did not prove “that any risk [of severe pain] posed by midazolam is substantial when compared to known and available alternative methods of execution.”[23] The Court also held that defendants “failed to establish that the District Court committed clear error when it found that the use of midazolam will not result in severe pain and suffering.”[24] The Glossip case used the Baze v. Rees standard, which requires a showing that “the State’s lethal injection protocol creates a demonstrated risk of severe pain,” and “that the risk is substantial when compared to the known and available alternatives.”[25] The Supreme Court in Glossip relied on an expert opinion about the effects of midazolam, and the fact that Oklahoma had put in place safety protocols to monitor the effects of midazolam in order to uphold the use of midazolam in Oklahoma’s lethal injection protocol.[26]
Given the drug shortage, states have to continue replacing and using different drugs that are untested or do not have the anticipated effect, and this is likely to elicit claims that these new drugs are not appropriate for execution because they are causing a “demonstrated risk of severe pain.”[27] Thus, litigation is likely to continue in the future as states start implementing and using new drugs for execution. Perhaps, we may see states abandoning lethal injection for other methods to carry out their executions.
[1] State by State Lethal Injection, Death Penalty Information Center, http://www.deathpenaltyinfo.org/state-lethal-injection (last visited Feb. 2, 2017).
[2] Id.
[3] James Gibson & Corinna Barrett Lain, Death Penalty Drugs and the International Moral Marketplace, 103 Geo. L.J. 1215, 1272–74 (2015).
[4] Dara Kam, Florida Changes Lethal Injection Drugs, Daytona Beach News J. (Jan. 5, 2017, 5:04 PM), http://www.news-journalonline.com/news/20170105/florida-changes-lethal-injection-drugs.
[5] Letter from Julie L. Jones, Secretary of the Florida Department of Corrections (“FDOC”), to Rick Scott, Governor of Florida, Execution by Lethal Injection Procedures, FDOC 7–8 (Jan. 4, 2017), http://www.dc.state.fl.us/oth/deathrow/lethal-injection-procedures-as-of_01-04-17.pdf.
[6] FDOC, supra note 5, at 7–8; Kam, supra note 4; Tess Owen, Florida is Stockpiling an Untested Lethal-Injection Drug, Bus. Insider (Dec. 7, 2016, 7:41 PM), http://www.businessinsider.com/florida-is-stockpiling-an-untested-lethal-injection-drug-2016-12.
[7] Owen, supra note 6.
[8] FDOC, supra note 5, at 7–8; Kam, supra note 4.
[9] Kam, supra, note 4.
[10] See id.
[11] State by State Lethal Injection, supra note 1.
[12] Owen, supra note 6.
[13] State by State Lethal Injection, supra note 1.
[14] Gibson & Barrett Lain, supra note 3, at 1216–17; Glossip v. Gross, 135 S. Ct. 2726, 2733–34 (2015).
[15] Matt Ford, Pfizer v. Lethal Injections, Atlantic (May 13, 2016), https://www.theatlantic.com/politics/archive/2016/05/pfizer-lethal-injection-drugs/482811/.
[16] See Owen, supra note 6.
[17] See Glossip, 135 S. Ct. at 2726.
[18] U.S. Const. amend. VIII; Glossip, 135 S. Ct. at 2731, 2735.
[19] See Glossip, 135 S. Ct. at 2737–38.
[20] Midazolam is “a sedative in the benzodiazepine family of drugs” and, if used in executions, it is the first drug administered to the inmate. Id. at 2734–45. This drug causes loss of consciousness and renders the inmate unable to feel pain from the other two other drugs used in the three injection protocol. Id.
[21] Id. at 2731–35.
[22] Id.
[23] Id. at 2737–38.
[24] Id. at 2738.
[25] Glossip, 135 S. Ct. at 2737 (quoting Baze v. Rees, 553 U.S. 35, 61 (2008)).
[26] Id. at 2740–46. The safety protocols in Oklahoma aimed to prevent to inmate from feeling the pain of the other two drugs, once the sedative, midazolam, is given. Id. at 2375. “Those safeguards include: (1) the insertion of both a primary and backup IV catheter, (2) procedures to confirm the viability of the IV site, (3) the option to postpone an execution if viable IV sites cannot be established within an hour, (4) a mandatory pause between administration of the first and second drugs, (5) numerous procedures for monitoring the offender’s consciousness, including the use of an electrocardiograph and direct observation, and (6) detailed provisions with respect to the training and preparation of the execution team.” Id.
[27] Id. at 2737 (quoting Baze, 553 U.S. at 61).