Arizona’s admission on Friday that its supply of a drug mixture approved for use in the death penalty has dried up can be tied directly to a growing refusal of US and European pharmaceutical companies – including, last month, Pfizer – to be partners in state-sponsored homicide.
But the upshot of Arizona’s empty cupboard is emblematic of a country increasingly on the fence about the ultimate punishment. Lacking the three-part mixture that makes up the state’s official lethal injection cocktail, “there can be no executions in Arizona in the foreseeable future,” writes Michael Kiefer, in the Arizona Republic.
The admission came as part of a legal review of the 2014 execution of convicted murderer Joseph Rudolph Wood, who took nearly two hours to die. A sedative used in that execution, midazolam, is no longer available to states, and Arizona officials say they also haven’t been able to procure two others – one that’s designed to stop breathing, the other to stop the heart.
Whether or not states can come up with pharmaceutical substitutes, the situation in Arizona is part of an increasingly poignant national debate that has put the ethics of the death penalty at odds with its practicality, raising deep doubts about “the justification for the death penalty itself,” as Supreme Court Justice John Paul Stevens predicted after ruling on a lethal injection case out of Kentucky in 2008.
Now, almost a decade after Justice Stevens’ point, ethical concerns by pharmaceutical companies and federal prohibitions on importing certain drugs from abroad has complicated the process, perhaps to a point of no return. In the past five years alone, the makers of 13 different drugs have blocked their use by states for killing convicts. That means that 20 of the 31 states that impose the death penalty have either formal or informal moratoriums in place, given an inability to procure the necessary drugs.
Meanwhile, public opinion – as shown in polls as well as the frequency of death penalty convictions – has shifted. Fifty-six percent of Americans favored capital punishment in 2015, but that's down from 78 percent just 20 years ago, according to the Pew Research Center.
Last year, the US saw only 49 death sentences imposed, a 33 percent drop from the previous year, and down from a peak of 315 in 1996. Two-thirds of last year’s death sentences came from juries in only 2 percent of US counties, according to the Death Penalty Information Center.
Moreover, fueled by a series of death row exonerations and what many saw as botched executions in the last two years, deeper problems in the state-by-state death penalty system have been increasingly laid bare by circumstances, even as the Supreme Court, with reservations, has continued to uphold the practice.
A number of corrections officials in Oklahoma resigned recently after a grand jury investigation found that some officials acted “flippantly and recklessly” as they attempted to procure the drugs. And several states have been forced to surreptitiously purchase drugs – sometimes using $100 bills so purchases can’t be tracked – from countries such as India.
“In scrambling to find another supplier, several states showed themselves to be more interested in scoring product than in administering the death penalty in a fair, reliable manner,” writes Lincoln Caplan, in the New Yorker. He adds: “… the unsuccessful effort, by one state after another, to carry out lethal injections [fairly and reliably] has made it increasingly clear that states cannot constitutionally perform these types of executions.”
Such realizations have begun to have an impact. "Everywhere you look with the death penalty, there's a problem,” Kathryn Kase, executive director of the Texas Defender Service, told USA Today.
Yet several states are not ready to swear off the sanction, which the Supreme Court found constitutional in 1976.
Missouri, Georgia, and Texas have all managed to carry out executions via lethal injection by using compounding pharmacies, which operate without FDA oversight.
But given the fact that “states will run out of drugs for lethal injections” they “will be faced with the choice of whether to use another method,” Lincoln Caplan, writing in the New Yorker.
To that end, Utah voted last year to bring back the firing squad and Tennessee began preparing for electric chair executions in 2014, in anticipation that the drug supply would be squeezed. A small number of states still allow gas chambers and hanging as options.
But a study by YouGov last year found Americans only support the death penalty if it’s done by lethal injection – which has the patina of a medical procedure – rather than other, more seemingly gruesome, methods.
That leaves a rapidly dwindling number of options for states like Arizona that are determined to carry out the ultimate penalty a jury can bestow.
“States that want to carry out executions have a couple of choices: look for other sources of drugs (such as compound pharmacies), change their method of execution, or decide they’re done with capital punishment,” Robert Dunham, the executive director of the Death Penalty Information Center, told The Christian Science Monitor’s Jason Thomson last month.
Arizona currently has 118 prisoners on death row.