New Difficulties in Executions Prompt Constitutional Questions
By Alex Darby
The death penalty is currently facing renewed scrutiny in the United States as the drugs previously used for lethal injection become increasingly difficult to obtain. States that still employ the death penalty have scrambled to find alternative methods of killing those on death row, raising new questions about the constitutionality of the death penalty.
The death penalty has become increasingly rare in most Western countries. Many of the companies that produce the drugs used in lethal injections are based in European countries that have banned the death penalty. The drugs most commonly used in lethal injections were previously pentobarbital and sodium thiopental; however, upon increased public outcry that the drugs were used in executions, the companies that produced these drugs have either stopped production or sell the drugs with the strict prohibition that they cannot be used in executions. For example, on learning that the drug propofol would be used for executions in Missouri, the German manufacturer of the drug requested the return of the drugs and threatened European Union sanctions. The governor postponed the execution of a man on death row for fear that the use of propofol would threaten the supply of the drug needed for hospitals. The German company threatened the use of European Union sanctions and requested that the drug be returned. Alabama has been forced to postpone executions because it has run out of pentobarbital, the initial drug used in the state’s executions. Further, even states that may currently have a stockpile of the drugs will face a shortage when the drugs expire and are no longer usable.
To deal with the shortage of previously used drugs, states are turning to untested drugs from compound pharmacies that are “produced in small amounts on special order without strict regulatory oversight and have been linked to contamination in the past.” This creates a significant issue as the manner of death that these drugs produce is not always clear. Dennis McGuire was executed by the state of Ohio using an untested combination of drugs. The execution was the longest recorded execution in Ohio history, taking nearly 24 minutes. McGuire spent roughly 10 minutes gasping and snorting before he finally died. A properly performed lethal injection takes between 4 and 5 minutes to be completed. These seemingly painful side effects and increasing secrecy around the sources for the drugs raise new Due Process and Eighth Amendment issues.
Some states, such as Oklahoma have enacted laws that keep the source of the drugs and the types of drugs used secret, even from the court itself. The Alabama legislature is currently considering a law similar to the Oklahoma statute. Proponents of the law argue that it is important to keep this information secret to ensure suppliers are willing to continue to provide the drugs. However, an Oklahoma judge recently ruled that such secrecy is unconstitutional. Proponents of the laws argue that the secrecy is required to ensure drug companies will continue to supply the needed drugs while opponents argue that without knowing what the lethal cocktail is composed of, there is no way ensure that the execution does not violate the Eighth Amendment prohibition on cruel and unusual punishment. An Oklahoma judge held that, because of the potential Eighth Amendment risks, the secrecy surrounding the composition of the drugs created a Due Process issue that rendered it unconstitutional.
The Eighth Amendment sets out a prohibition on cruel and unusual punishment. The Supreme Court has held varying positions on the constitutionality of the death penalty since the 1970’s. In 1972, the Court struck down Georgia’s death penalty statutes and with it similar statutes in a majority of states. The Court changed course just four years later, holding that the death penalty is not per se unreasonable. Under this reasoning, the resulting death is not unconstitutional, but the manner in which the punishment is carried out may be.
When the Court has recently reviewed cases involving lethal injection, the Court held that the Eighth Amendment prohibits methods that create an objectively intolerable risk of harm. The risk of some pain is not sufficient, as in Baze v. Rees the court upheld the method lethal injection because they were alleged to cause severe pain only if administered improperly. The issue that arises in the case of drugs from compound pharmacies is that these drugs are often untested- including the injection used in the execution of Dennis McGuire in Ohio. There is no way to know whether the resulting death will be painful or not until the inmate is lying on the table gasping. The attempt by various states to shroud the drugs used in secrecy creates an even more significant risk. There is no way for an attorney to argue that the drugs pose an Eighth Amendment violation, as there is no way to even speculate the effects a drug may have if the type of drugs to be used is untested and its source unknown.
While the difficulty procuring these drugs is causing significant difficulties for some states, it provides a new opportunity to discuss the death penalty, and whether it is still aligned with the views of the majority of the country. The Court has long tied Eighth Amendment analysis to evolving standards of decency. The United States is one of the few Western countries that still use capital punishment. Further, the majority of executions in the United States occur in only a handful of states.  The death penalty has a long history in this country; however, the methods formerly used- such as hangings or the electric chair- would make many uncomfortable today. The idea that lethal injection is a “humane” means to end human life is now being challenged as new drugs produce accounts of deaths that seem far from painless. It is time that the US again raise its standard of decency, and prohibit this punishment altogether.
 See Facts About the Death Penalty, Death Penalty information Center, http://www.deathpenaltyinfo.org/documents/FactSheet.pdf; The Council of Europe, http://hub.coe.int/what-we-do/human-rights/death-penalty.
 Manny Fernandez Executions Stall as States Seek Different Drugs NY Times (November 8, 2013), http://www.nytimes.com/2013/11/09/us/executions-stall-as-states-seek-different-drugs.html?ref=capitalpunishment&_r=0.
 Aidan Lewis, Lethal Injection: Secretive US States Resort to Untested Drugs, BBC News (Nov. 14, 2013), http://www.bbc.com/news/world-us-canada-24935868.
 Alabama Out of Execution Drugs, Can’t Carry Out Sentences, Al.Com (Mar. 25, 2014, 8:04 p.m.), http://blog.al.com/wire/2014/03/alabama_out_of_execution_drug.html
Erik Eckholm, Oklahoma Told It Can’t Shield Suppliers of Execution Supplies, NY Times (March 26, 2014), http://www.nytimes.com/2014/03/27/us/oklahoma-told-it-cant-shield-suppliers-of-execution-drugs.html?ref=capitalpunishment
 Kyle Whitmore, While Alabama Legislature Considers Execution Secrecy Bill, Oklahoma Judge Rules Similar Laws Unconstitutional, AL.Com (Mar. 26, 2014, 3:25 p.m.), http://blog.al.com/wire/2014/03/while_alabama_legislature_cons.html.
 See Lewis, supra note 3.
 Whitmore, supra note 11.
 Eckholm, supra note 6.
 Furman v. Georgia, 408 U.S. 236, 240 (1972).
 Gregg v. Georgia, 428 U.S. 153, 179 (1976).
 Baze v. Rees, 553 U.S. 35, 50 (2008).
 Id. at 54-55.
 Roper v. Simmons, 543 U.S. 551, 561 (2005).
 See Facts About the Death Penalty, Death Penalty information Center, http://www.deathpenaltyinfo.org/documents/FactSheet.pdf.