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No pusherman = no death penalty?

“Default–the two sweetest words in the English language!” — H.J. Simpson

Given how much heat the Supreme Court has taken from conservatives for drawing upon other countries’ practices to support barring executions of minors and developmentally disabled defendants, it would be ironic if capital punishment in the United States were to meet its demise because of opposition from foreign actors. In a recent piece at National Journal, Dustin Volz describes a scenario in which states with the death penalty will increasingly find themselves unable to carry out executions because of shortages of drugs used in the standard three-drug lethal injection protocol. (I refuse to adopt the increasingly common reference to a three-drug “cocktail,” lest I besmirch the good name of adult beverages.) The causal chain looks something like this:

  1. States find themselves short-handed because of a combination of European Union regulation and individual pharmaceutical companies’ decisions not to export drugs to the U.S. that might be used to perform executions.
  2. States would prefer to substitute other drugs for those no longer readily available, as when Florida last month replaced pentobarbital with midazolam hydrochloride when executing William Happ.
  3. Any use of substitute drugs will be challenged in court on Eighth Amendment grounds. Attacks will take two forms. In the case of drugs produced by compounding pharmacies, which mix drugs customized for particular individuals, litigants will claim that insufficient regulation of such pharmacies will raise the probability that the drugs will cause excruciating pain to those being injected. More broadly, death penalty foes will charge states with adopting drugs “because they are available, not because they know anything about those drugs,” as Deborah Denno, an abolitionist expert at Fordham Law School, puts it. The threat of litigation will also discourage American drug manufacturers from developing new chemicals to be used in executions.
  4. States, accounting for the costs of procuring the necessary drugs and the time and expense of prolonged litigation, will take more seriously the option of abolishing the death penalty outright. For example, in Arkansas–hardly a state known for its solicitude toward criminal defendants–both the governor and attorney general have publicly indicated a willingness to do away with capital punishment. At the same time, other methods of execution will be deemed infeasible because of a combination of grisliness and unwillingness of medical personnel to participate.
  5. Capital punishment begins to die a bloodless death.

For death penalty abolitionists, who have been forced to battle on the margins because of the Supreme Court’s hostility to both frontal attacks on capital punishment and challenges based on racial bias in sentencing, this scenario represents the most promising way to see their goals fulfilled. At the same time, however, there are good reasons to think that the death penalty will not disappear so easily.

For one, states that are committed to maintaining capital punishment will not abandon the practice lightly. For states that are already leaning toward abolition, a shortage of drugs might provide political officials with crucial cover. But for the states where execution is a seemingly indelible part of the penal landscape, drug shortages are a surmountable obstacle. Indeed, states such as Florida, Ohio, and Texas have gone to great lengths to procure chemical work-arounds in response to shortages of preferred drugs. The threat of litigation is not going to lead these states to curtail the death penalty; if anything, they might welcome the opportunity to demonstrate to their constituents their commitment to a popular policy. In the worst-case scenario, death-penalty states wanting to maintain the policy would have to reconsider now-abandoned methods of execution, but barring an unprecedented Supreme Court ruling labeling all forms of execution to be cruel and unusual punishment, they would not have to stop executing people altogether.

And while the Supreme Court has demonstrated a willingness to ban capital punishment against particular types of defendants, it has shown little appetite for challenging the practice itself, or even particular methods of performing executions. When the three-drug protocol was challenged in 2008 as cruel and unusual, because the threat of improper administration of the first drug (sodium thiopental) would lead to excruciating pain from the other two drugs (pancuronium bromide and potassium chloride), the Court ruled that the protocol did not present a “substantial risk of serious harm.” The existence of alternative protocols does not call into doubt the prevailing method of administering lethal injections. So unless plaintiffs can demonstrate that chemical alternatives are not just worse than the prevailing three-drug protocol, but also fall below the line regarding safety, they will be unlikely to convince the Court to effectively foreclose lethal injections.

In short, those who want to see the death penalty eliminated will probably not be able to assume that anonymous pharmaceutical company decision makers and European Union regulators can accomplish this task. If the death penalty is to be outlawed, and not just allowed to disappear de facto, it will happen because someone takes affirmative, highly visible, politically contentious action to make it so. It’s a tougher hill to climb, but climbing it would feel like a victory duly earned.