Supreme Court Declines Federal Death Penalty Case
On June 29, the Supreme Court, without comment, declined to hear a case that would have prevented the federal government from resuming executions as Attorney General William Barr announced last summer. According to the statement made by the Department of Justice (DoJ) in July 2019, the federal government will execute death row inmates for the first time since 2003 using the drug pentobarbital, which is only used in some states.
A decades-long campaign against the death penalty has resulted in pharmaceutical companies discontinuing the manufacture of the drugs most commonly used in lethal injection.
The government switched to pentobarbital, according to the DoJ statement, as an evidence-based alternative to the more common three-drug approach, which has been known to result in a painful death. Little research on pentobarbital as a lethal injectant for humans exists, but it is commonly used when putting down pets and the drug of choice of many euthanasia patients. The change in protocol also serves to sidestep a long-running court case against the DoJ challenging the three-drug approach.
The switch to pentobarbital is also a welcome change from anti-death penalty activists who view the drug as a more humane alternative to previous methods. Robert Dunham, executive director of the Death Penalty Information Center, said last year, “People of goodwill — whether they support or oppose the death penalty — think that if you’re going to have capital punishment then you need to execute people in the quickest, most painless way possible.” In theory, pentobarbital could achieve just that — less painful executions. Pentobarbital, however, is, like other lethal injectants, in short supply.
A decades-long campaign against the death penalty has resulted in pharmaceutical companies discontinuing the manufacture of the drugs most commonly used in lethal injection. Companies from Pfizer to Hospira have rolled back the production and sale of drugs used for lethal injections due to the “pressure campaigns” of activists. Manufacturers have made pentobarbital particularly difficult to access because of its use in lethal injections. Drug scarcity has resulted in state governments turning to compounding pharmacies, which produce non-FDA approved mixtures of drugs, to access pentobarbital. The lethal injection drugs produced in compounding pharmacies are often contaminated and not strong enough to end a person’s life without pain. Compounded drugs, for example, were used in the 2014 execution of Clayton Lockett and resulted in his veins exploding while he was still alive. Despite public uproar about the torturous execution of Lockett, anti-death penalty campaigners have continued to enforce a de facto ban on the manufacture of lethal injection drugs.
Though many forms of the death penalty are legal on a state-by-state basis, lethal injection is by far the most widely used. Lethal injection’s dominance, however, has begun to waver in recent years as studies have shown this method has the highest botched-execution rate of any form of the death penalty. In response to increasing drug scarcity and botched-execution rates, some states allow alternative methods of the death penalty such as electrocution and the firing squad. While these other methods have lower failure rates, lethal injection is favored as a more humane alternative because, as activists have said, it medicalizes death, bypassing the gore typically associated with it.
In recent years, anti-death penalty activists and organizations like the Death Penalty Information Center have sought to change this perception of lethal injection by drawing attention to botched executions. Due to this effort, headlines about the death penalty are almost always about the cruelty of botched executions, which have largely overshadowed the decrease in occurrences and support of the death penalty across the country.
Death penalty rates are at a near-record low as is its public support — largely due to efforts of activists who argue that any form of capital punishment is dehumanizing. Unfortunately, this decrease in the death penalty has come at a cost. Namely, through the drug moratorium, activists have made the death penalty more cruel and unusual in order to abolish it.
If the issue with the death penalty is its dehumanizing nature, then enforcing the drug moratorium is not the answer, as it only increases the cruelty of executions. With record-low support for the death penalty, perhaps a more humane and effective approach for activists would be to work on creating laws to actually abolish executions instead of banning all non-torturous lethal injection drugs. Whatever happened to dying with dignity?