Lethal Injection Hates Sunlight
Florida inmates' legal victory highlights the deception states employ to keep the execution method going.
The plain truth about lethal injection has had its day in court many times, and very little good has come of it.
We’ve known for years that lethal injection is the most likely method to result in a botched execution (despite an almost certain undercount, which we’ll get to later). In 2006, however, the Supreme Court concluded in Baze v. Rees that it doesn’t matter how likely things are to go torturously awry in the death chamber, as long as the result is “humane“ if all goes according to plan. Glossip v. Gross in 2016 went a step further: if inmates wanted a humane execution, they’d have to bring their own method. Perversely, 2019’s Bucklew v. Precythe states that a hypothetical alternative method needs the same “clear demonstration“ of its humane properties that the state’s method is exempted from by Glossip.
Where activists, attorneys and the condemned haven’t been able to win in court, however, they’ve managed to score a few victories with another potential agent of mercy: the drug manufacturers themselves. Seeing themselves in the healing business as they do, pharmaceutical companies are generally loathe to have their products used as instruments of death, and activists like Maya Foa of the UK-based Reprieve began pressuring Hospira, maker of the sodium thiopental that formed one-third (and as the sedative, the star player) of the “classic“ three-drug lethal injection cocktail, to find their way out of the lethal injection game.
Hospira had been struggling to make thiopental in the US after its plant in Rocky Mount, North Carolina was hit with FDA warning letters regarding contamination. The company made initial plans to restart production in Italy; the Italian Parliament, however, required a guarantee that the product wouldn’t be used in lethal injection. Since manufacturers can’t guarantee what a buyer on the wholesale market will do with a drug, their only option was to cease production, leaving America with no source of thiopental for any reason.
This should have been a huge inflection point in the practice of lethal injection. Thiopental was a key player in anesthesia and at the time was among the World Health Organization’s List of Essential Medicines, considered the minimum formulary of a functioning healthcare system (it’s still listed as an alternative to propofol in contemporary lists, and like clockwork…). The American Society of Anesthesiologists, no fans of lethal injection to begin with, noted in a statement that “many more lives will be lost or put in jeopardy as a result of not having the drug available for its legitimate medical use.” Around the land, state corrections officials began the deep examination of the way they put people to death that activists had been asking for.
Unfortunately, the conclusion was, “we need to stop these left-wing radicals from spoiling the party.“
Backroom Drug Deals
The answer: make it harder to find out who’s involved in lethal injection, from start to finish.
At first, the state sought to get its regular drugs via deals that looked increasingly like the back-alley drug trade they relentlessly pursued on the criminal justice system’s front end. A drug wholesaler running from the back of a driving school in London became Arizona’s supplier of thiopental. State officials met in parking lots with bags full of discretionary cash. These methods worked for a while but slowly petered out as European regulators caught up, and as we saw with propofol earlier, manufacturers of alternatives weren’t any happier being involved in lethal injection. States then turned to compounding pharmacies—local operations that can prepare drugs on site, usually for patients with specific pharmacological needs—to figure out the relatively uncomplicated work of making well-known medicine and ensuring a fresh supply of death.
Shield Laws
While this helped bring supplies back on line, it also subjected the pharmacies, typically small operations used to operating anonymously, to the pressure campaigns that got the big manufacturers out of lethal injection in the first place. The response was to draft laws “shielding“ the names of those involved in lethal injection from the scrutiny the method invites.
Oklahoma, the birthplace of lethal injection and the biggest inmate killer per capita in the post-Furman era, also pioneered the first shield law in 2011, stating that “[A]ll persons who participate in or administer the execution process and persons who supply the drugs, medical supplies or medical equipment for the execution” shall be exempted from reporting or public information request processes. 25 states would either follow with specific legislation or release similar interpretations of existing legislation by 2018.
These laws don’t just extend to the means of securing supplies, either; 15 and 14 states explicitly block witnesses from seeing or hearing, respectively, part of the execution, an important part of judging incomplete sedation and/or paralysis. Mississippi’s lethal injection policy takes it a step further, placing a higher priority on the anonymity of the state-sanctioned killer (the IV Team Leader shall be “dressed in a manner to preserve their anonymity”) than their qualifications (no criteria listed).
A Rare (& Probably Temporary) Victory in Florida
Florida death row inmates, however, have won a rare victory in at least stemming the flow of these shield laws. On January 2nd, a federal magistrate judge ruled that, while the individuals and entities may remain anonymous the Florida Department of Corrections must turn over records informing how their execution team is trained, how their previous executions may have gone, and how their drugs are produced and maintained.
It’s very rare for prisoners to win on Eighth Amendment grounds regarding lethal injection; as mentioned before, the Supreme Court has given corrections officials wide latitude in how “cruel and unusual“ lethal injection is allowed to be. And it’s tough to believe this is headed for the outcome they’re hoping for: the prisoners’ argument is centered on the idea that etomidate, an “ultra-short-acting“ sedative, won’t sedate them well enough to avoid the horrors of waking paralysis or being burned alive by potassium, but the Supreme Court has already decided in Glossip that lethal injection drugs aren’t required to work to any meaningful standard. Still, as lethal injection remains America’s least humane but most popular execution method, perhaps any exposure to sunlight should be viewed charitably.