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In the wake of multiple botched lethal injection executions over the past year—including those of Clayton Lockett in Oklahoma, Dennis McGuire in Ohio, and Joseph Rudolph Wood in Arizona—the practice of capital punishment is being brought under the microscope in a way that it hasn’t been perhaps since its inception.
On Feb. 9, the American Bar Association House of Delegates passed two resolutions, both focusing on a seeming overall stance that capital punishment isn’t something to be administered lightly. According to the ABA Journal, Resolution 108A calls for a unanimous jury decision before imposing the death penalty anywhere that capital punishment is legal—including the U.S. military. In addition, Resolution 108B calls for “open and transparent” disclosure of execution protocols as well as public comment on any new protocols and disclosure of all relevant information.
This latter resolution would seem to address previous cases of death row inmates requesting more information on the drugs that would be used to execute them. The U.S. Supreme Court walked away from one such case, that of Joseph Rudolph Wood, with egg on their face after lifting a stay of execution requested by Wood so he could get such information. It took Wood nearly two hours to die, during which it was reported by his lawyers: “He has been gasping and snorting for more than an hour . . . He is still alive.”
Currently the Supreme Court has another case pending, Glossip v. Gross, wherein four Oklahoma death penalty defendants have challenged the state’s use of midazolam in lethal injection, claiming the drug lacked the necessary pain-relieving qualities. Of the four defendants, Richard Warner, was not granted a stay of execution and was put to death on Jan. 15. The other three defendants were granted their stays on Jan. 28.
Amidst this controversy, states where capital punishment is still allowed are making headlines with different approaches to try to remedy the situation, including Oklahoma where the Glossip case is pending, Utah, and Pennsylvania.
Oklahoma Reconsiders Gas Chamber
Many of the problems with lethal injection as the preferred method of capital punishment have arisen as a result of the fact that suppliers of the traditional three-drug combination used for execution have started deciding that they no longer are going to sell their drugs for that use. As a result, many states are having to seek alternative drug or drug combinations, some of which have yet to be approved by the FDA.
In addition to the lack of pain-relieving properties of midazolam, according to a Law.com report, an anesthesiologist testified that the drug has a “ceiling effect,” a point at which the drug saturation in the body may not be able to continue keeping the person completely unconscious.
The ABA Journal reports that in the midst of Glossip v. Gross, Oklahoma officials have conceded that midazolam is not the preferred drug for execution. However, taking it a step further, two bills are in Oklahoma legislative committees to use nitrogen gas to carry out the capital punishment as a backup method if the state’s current method is found unconstitutional.
As opposed to traditional gas chambers which use drugs such as cyanide, breathing nitrogen would lead to hypoxia, a depletion of oxygen in the bloodstream. One of the bill sponsors, Rep. Mike Christian called the practice “a lot more practical,” “efficient,” and “painless,” saying it is similar to what can happen to pilots at high altitudes.
Currently four states allow lethal gas for capital punishment—Arizona, California, Missouri, and Wyoming—but only as a secondary method to lethal injection, and no state has ever used nitrogen or another inert gas to create hypoxia.
As Oklahoma law stands now, their secondary method of execution is the electric chair, and the firing squad is the third option. However, Christian is considering amending his bill to include eliminating the electric chair as an option.
Utah Reconsiders Firing Squad
Even though Utah has only executed seven men since 1976, as a state where capital punishment is still legal, they are facing the same dilemma as Oklahoma. If the practice is found unconstitutional, what do they do next? While not considering the gas chamber, the state is closer to reinstating the firing squad.
According to an article in the Salt Lake Tribune, on Feb. 13, the Utah House of Representatives passed HB11 reinstating the firing squad as a secondary means of carrying out the death penalty. The bill passed 39 to 34, with 38 votes being the minimum to pass the House. The bill, sponsored by Rep. Paul Ray, will now move to the Senate.
This bill would bring back the firing squad as an option, something which was eliminated from Utah law in 2004. Opponents to the legislation claim that it disproportionately affects minority communities and is more barbaric than lethal injection.
Minority Leader Brian King argued not so much against the firing squad as he did against capital punishment in general, stating that death penalty sentences result in higher costs for the state than life terms in prison and that states with the death penalty actually have a higher murder rate than other states.
Pennsylvania Governor Says “No” to Capital Punishment
Also on Friday, Feb. 13, Pennsylvania governor Tom Wolf stated that he is putting a stop to all scheduled executions until he has a report from a task force on the matter.
According to the ABA Journal, while Wolf says he believes that the guilty should be punished and is still sympathetic to crime victims, he called capital punishment “a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust, and expensive.”
Opponents to Wolf’s decision, including prosecutor and police organizations, are strongly criticizing the action. The Pennsylvania District Attorneys Association called his decision “a ploy” and “a misuse of power” and said he was disregarding a long line of people—including juries and judges—who didn’t take the decision to impose capital punishment lightly.
However, Wolf has supporters in the decision as well, including in some cases, relatives of murder victims. Some have reiterated the cost factor of capital punishment as well as the fact that it has often been discovered posthumously that innocent people were put to death.
While the future of lethal injection is uncertain, it would seem that the decision by the Supreme Court regarding Glossip v. Gross will most likely set the stage in the 32 states that still allow capital punishment to make moves similar to those seen in Oklahoma, Utah, and Pennsylvania.