Lethal injection was introduced in 1977 and it has become the primary method used to carry out executions in 35 of the 36 states where the death penalty is still legal. Sodium thiopental became the go-to general anesthetic used in the drug cocktail administered to death row inmates until 2011, when the sole U.S. manufacturer of the drug, Hospira, announced that it would exit the market in response to challenges to the product’s use in capital punishment. Lack of access to the drug has delayed executions, and the departments of corrections of several states, applying untried drug combinations, have made an incredible mess of the situation by not being completely transparent in their efforts to replace sodium thiopental.
In January, Ohio used a new two-drug combination that took 25 minutes to kill Dennis Mcguire and left him gasping, snorting and choking. The inmate’s attorneys had argued unsuccessfully to stop the execution upon discovery that the drugs being used would trigger air hunger, or dyspnea, which is a feeling of breathlessness akin to suffocation. While state officials reasoned that death row inmates are “not entitled to a pain-free execution,” the incident raised questions regarding the Eighth Amendment protection against cruel and unusual punishment, and the rights of the inmates sitting on death row to know how the state plans to kill them.
States using new drug combinations have refused to release information to the press, public and the inmates set for execution regarding which drugs are being used. Tennessee Gov. Bill Haslam signed a bill into law in 2013 that would prohibit the release of any information regarding how new drugs are being procured. Similar laws and gag orders have taken effect in Georgia, Alabama and Missouri.
Death row inmates took action in Missouri by filing a lawsuit last year against George Lombardi, the director of the Missouri Department of Corrections. The inmates and their attorneys asked for simple information — “the identities of (1) the physician who prescribes the chemical used in Missouri executions, (2) the pharmacist who compounds the chemical and (3) the laboratory that tests the chemical for potency, purity and sterility.”
The U.S. Court of Appeal for the Eighth Circuit ruled against the death row inmates. Instead of placing the burden on the state of Missouri to prove that the drugs it was using to perform executions were the best available, it placed the burden on those sitting on death row to prove that the drugs used against them were not the worst available.
An Oklahoma county district judge ruled in favor of an inmate claiming that the secrecy laws violated his right to access the courts to make a case against his own execution on March 26. This progress is encouraging, but on a scale too small to incite sweeping policy changes.
Reassurances from states that the drugs have been tested and are safe for use are not enough — inmates have the right to know the origins of the drugs. Without knowing the source, it is impossible to make any determination regarding safety and reliability. Lawmakers should not be prioritizing the privacy of pharmaceutical companies over the civil rights of inmates. The people on death row do not invite sympathy easily — many are convicted rapists and murderers. However, they are still citizens of the United States and are afforded protection under the Constitution. For now, federal and many state courts do not recognize the death penalty as cruel and unusual punishment, but it is still the judiciary’s responsibility to monitor the implementation of capital punishment to ensure it is carried out in the most humane way possible. It is necessary to have full transparency regarding the drugs and the corporations that provide them.
Nina Golshan is a deputy opinion editor. Looking Left is published every Friday. Email her at [email protected].