Are we witnessing the beginning of the end of the death penalty in America? All of it might come down to a basic issue of supply.
So, what do you do if you are a hangman who runs out of rope? To put it in more conventional terms, suppose you are a state that executes people by lethal injection, but you're running out of the lethal chemicals used to put people down like animals.
Perhaps you'd do what some states have done and buy your chemicals on the black market, so to speak.
In March, Judge Richard J. Leon, a federal judge in Washington, D.C., issued an order and opinion banning the importation of sodium thiopental, an anesthetic and the first of a three-chemical cocktail administered to a condemned inmate. Once the inmate is unconscious, he or she is injected with pancuronium bromide, which paralyzes the person, and potassium chloride, which causes death through cardiac arrest.
According to the judge, it was disappointing that the Food and Drug Administration (FDA) broke the law by allowing shipments of the drug from foreign countries, unapproved for the purpose of executions. Without FDA approval, according to the judge, the sodium thiopental would fail to put the inmate to sleep, causing "conscious suffocation, pain, and cardiac arrest."
Judge Leon ordered the FDA to notify state corrections departments that they must surrender the drug to the FDA.
The drug is only available overseas, as the only U.S. manufacturer recently ceased production last year amid controversy over its use. Moreover, the European Union recently announced restrictions on export of the drug. But with sodium thiopental unavailable, the most logical replacement is pentobarbital. This replacement drug, which is a more expensive alternative, has been used by 12 states to put 47 people to death since 2010, according to the Death Penalty information Center, and is widely used to put down animals. In addition, the chemical is used to treat insomnia and as a seizure treatment for epilepsy.
Manufacturers of pentobarbital, including Danish manufacturer Lundbeck, Inc., have made it known to various states that they do not want the drug used for executions. States such as Arizona, Georgia and Texas apparently have stockpiled pentobarbital and say they have enough supply for this year's executions.
Texas apparently bought $50,000 worth last year and wants to block information on its stockpile, and the state has accused the anti-death penalty group Reprieve of "'intimidation and commercial harassment' of manufacturers of medical drugs used in lethal injections." Arizona has had its lethal injection protocols challenged, as inmates have sued the state for giving the state's corrections director too much discretion. Meanwhile, Ohio just resumed executions after a federally-imposed six-month moratorium because prison officials were not following proper procedures. And Alabama stayed an execution in March after the condemned inmate argued that Pentobarbital does not completely sedate and amounts to cruel and unusual punishment under the Eighth Amendment.
With both domestic and international public pressure on the purveyors of death, it seems they're feeling the heat, as well they should. Willing executioners are in short supply, and former executioners have seen enough to know they want no part of it. Further, they have likely killed innocent people. Many doctors are unwilling to break their Hippocratic oath to do no harm, or are forbidden to do so.
Used to extinguish 1,100 lives in 35 states -- some of them most certainly innocent -- lethal injection is the prominent form of capital punishment in the U.S. Marketed as the clean, humane form of capital punishment, lethal injection was billed as the friendly, painless type of execution. But we should ask, how harmless can you really make a lynching?
If lethal injection falls out of favor, either through a dwindling supply of the poisonous cocktail of death, lack of public support or a court ruling, what do the states do after that? Do they return to the hangman's noose? That seems unlikely, reminds us too much of the strange fruit hanging from the trees that Billie Holiday used to sing about.
What about the electric chair, which has been known to cook people alive? Or the gas chamber, like the Nazis used to do?
Then there's the firing squad. Better yet, how about stoning, or drawing and quartering, which is really old school?
Here's a better idea. Just get rid of the death penalty for good. America is the only Western nation that executed people last year. And the U.S. is in the top five of nations that execute, putting us in league with China, Iran, North Korea and Yemen. We'll never get it right with the death penalty because executions are so wrong.
No matter how the state kills a person, you can't wipe the blood from your hands.
David A. Love is the Executive Director of Witness to Innocence, a national nonprofit organization that empowers exonerated death row prisoners and their family members to become effective leaders in the movement to abolish the death penalty.