April 8, 2015
Supreme Court gives new life to death penalty debate
WASHINGTON — The state that plans to kill Kent Sprouse on Thursday recently received a new supply of pentobarbital, the drug of choice for executioners in a country fast running out of humane ways to perform lethal injections.
That should give Texas enough of the barbiturate to execute four death row inmates at its Huntsville state penitentiary this month and maintain its status as the nation’s leader in lethal injections — more than 500 since it became the first to use that method in 1982.
But other states — and some of the prisoners they have executed of late — can’t find pharmacies willing to supply drugs that can kill reliably, without the gasps and groans the Supreme Court has indicated may violate the Constitution’s protection against cruel and unusual punishment.
In three weeks, the justices will consider a challenge from three death row inmates to Oklahoma’s lethal injection method, one that’s used by several other states. A ruling against the use of midazolam, a sedative that lacks the knockout punch of pentobarbital, as part of a three-drug cocktail would further crimp the country’s ability to execute prisoners.
Even if the court does not rule against Oklahoma, a number of other developments are pointing toward the diminution of the death penalty in America:
• Six states — New York, New Jersey, New Mexico, Illinois, Connecticut and Maryland — have abolished capital punishment since 2004.
• Several other states have imposed moratoriums on lethal injections because of problems, ranging from botched executions in Oklahoma and Ohio to a “cloudy” drug concoction in Georgia.
• The Supreme Court has ruled that juveniles and people with intellectual disabilities cannot be executed, while judges, juries and prosecutors have turned increasingly to life sentences without the possibility of parole.
• Just last month, both the American Pharmacists Association and the International Academy of Compounding Pharmacies discouraged their members from participating in the process. The U.S. group called it “fundamentally contrary to the role of pharmacists as providers of health care.”
• The difficulties involved in lethal injections are forcing states with capital punishment laws to rejuvenate backup methods once viewed as beyond the pale. Tennessee would allow electrocution, Utah death by firing squad. Now Oklahoma lawmakers are moving toward legalizing the use of nitrogen gas.
“The lethal injection issues are coming at a critical juncture,” says Robert Dunham, executive director of the Death Penalty Information Center. Capital punishment is declining, he notes, “judicially, legislatively and as a matter of practice – all at the same time.”
‘OUR BUSINESS IS IN HEALING’
Death row inmate Richard Glossip and two others are challenging Oklahoma’s use of a controversial three-drug cocktail for lethal injections. (Photo: AP)
There is good reason to believe the Supreme Court won’t help that trend April 29 when it considers Glossip v. Gross — a case called Warner v. Gross until the justices refused to stop Charles Warner’s lethal injection in January.
Despite its rulings abolishing the death penalty for people with intellectual disabilities in 2002 and for juveniles younger than 18 in 2005, the conservative-leaning court has shown little inclination to move much further. Only four votes were needed to accept the Oklahoma case. Only the use of midazolam as part of a three-drug protocol is in jeopardy.
That’s not the same three-drug protocol the court upheld in Baze v. Rees, the 2008 Kentucky case that upheld the method of lethal injection used in most states at the time. Midazolam was implicated in three botched executions last year in Ohio, Oklahoma and Arizona, where prisoners gasped, groaned and snorted before succumbing.
Although Florida and Oklahoma used that protocol successfully in January, Texas and Missouri have had fewer problems with pentobarbital. The problem is in getting a reliable supply of any lethal injection drugs following the European Union’s export ban in 2011.
States that have turned to compounding pharmacies for their drugs are running into increased resistance — for good reason, says David Miller, executive vice president of the International Academy of Compounding Pharmacists.
“As a pharmacist, I was trained to take care of people,” Miller says. “This is not our business. Our business is in healing.”
The court will hear the challenge from Richard Glossip, John Grant and Benjamin Cole, whose executions had been scheduled for January, February and March. Glossip was convicted of paying another man to kill the owner of the Oklahoma City budget motel where he worked as manager. He has long declared his innocence.
The battle lines in Oklahoma are clear. The state, which not only agreed to postpone those executions but asked the court to do so, hopes for a clear victory.
“The families of the victims in these three cases have waited a combined 48 years for the sentences of these heinous crimes to be carried out,” Attorney General Scott Pruitt has said.
The best that death penalty opponents likely can hope for is a narrow decision restricting the use of midazolam.
“I do not think the court is going to open the Pandora’s box to broader discussions about the nature of lethal injection as a broad topic or the death penalty in general,” says Rick Halperin, director of the Human Rights Education Program at Texas’ Southern Methodist University. READ MORE