Amid Unavailability of Lethal Injection Drugs, States Push Legal Limits to Carry Out Executions

"Over time lethal injection has become only more problematic and chaotic,” Deborah W. Denno, a professor at Fordham Law School, told the New York Times, summarizing the ongoing battles that have led states to adopt new drug sources or alternative methods of execution. Several states have obtained or sought drugs using sources that may violate pharmaceutical regulations. For the execution of Alfredo Prieto, Virginia obtained pentobarbital from the Texas Department of Criminal Justice, which purchased it from a compounding pharmacy whose identity is shielded by the state's secrecy law. "Even if the transactions between states do not comply with law, there is no recourse for death-sentenced prisoners," said Megan McCracken, an expert in lethal injection at the Death Penalty Clinic at the University of California, Berkeley, School of Law. Both Nebraska and Ohio received warnings from the Food and Drug Administration that their attempts to purchase sodium thiopental from overseas suppliers violated federal law regarding the importation of drugs. Oklahoma executed Charles Warner in violation of its own execution protocol, substituting an unauthorized chemical, potassium acetate, for the potassium chloride its regulations require. Other states have turned to alternative execution methods: Tennessee reauthorized use of the electric chair, while Oklahoma passed a bill to make nitrogen gas asphyxiation its backup method. Louisiana prison officials also recommended using nitrogen gas, but the state has not taken action on that recommendation. The scramble for lethal injection drugs has delayed executions across the country. A challenge to Mississippi's protocol has halted executions until at least next year. A Montana judge put executions on hold because the state's proposed drug cocktail violated state law, and either the drugs that comply with state law are not produced in the U.S. and may not be imported or the manufacturer refuses to sell the drug for executions. In Oklahoma, the Attorney General requested an indefinite hold in order to review lethal injection procedures after the state obtained the wrong drug for the execution of Richard Glossip.

Montana Judge Puts Executions on Hold

On October 6, Montana District Court Judge Jeffrey Sherlock (pictured) held that the state's proposed lethal injection protocol violated state law, which requires that an "ultra fast-acting barbiturate" be used in executions. Judge Sherlock said the proposed barbiturate, pentobarbital, does not qualify as such a drug. The ruling stated, "The State of Montana is hereby enjoined from using the drug pentobarbital in its lethal injection protocol unless and until the statute authorizing lethal injection is modified in conformance with this decision." In 2012, a judge struck down Montana's three-drug protocol because it differed from the two-drug protocol called for in state law. As a result of the most recent ruling, executions in Montana will continue to be on hold indefinitely. “The State has had multiple opportunities to correct the problems with the death penalty protocol. And each time they came up with a new flawed procedure,” said ACLU Legal Director Jim Taylor. “Seven years of litigation has demonstrated that Montana's death penalty is broken beyond repair." Montana has carried out three executions since 1976, the last of which was in 2006. Earlier in 2015, a bill to repeal the death penalty failed on a tie vote in the House of Representatives.

Recent Developments in Death Penalty Legislation

Several state legislatures have recently taken action on bills related to capital punishment. In Arkansas, a bill to abolish the death penalty passed the Senate Judiciary Committee on a voice vote. Bill sponsor Sen. David Burnett, a former prosecutor and judge who both sought and imposed the death penalty, said, "It's no longer a deterrent. It's a punishment that's actually broken. It doesn't work. And it costs a huge amount of money to try and prosecute those cases." Arkansas last carried out an execution in 2005. A similar bill in Montana was approved by a House committee with bipartisan support, but failed on a tied vote (50-50) in the full House. Before the vote, repeal supporter Rep. Mitch Tropila said, “This is an historic moment in the Montana House of Representatives. It has never voted to abolish the death penalty on second reading. This is a momentous moment, and we are on the cusp of history." Montana's last execution took place in 2006. Virginia legislators rejected a bill to shield information related to lethal injection as state secrets. The House of Delegates voted 56-42 against the bill, which would have exempted “all information relating to the execution process,” including the source of execution drugs and the buildings and equipment used for executions, from open records laws. Del. Scott A. Surovell commented, "Anytime somebody in the government wants to restrict information about what the government is going to do, I think we need to ask some really difficult questions and get some straight answers before we grant them that right.”

Death Penalty Repeal Bill Advances with Bi-Partisan Support in Montana

On February 18, the Montana House Judiciary Committee voted (11-10) to advance HB 370, a bill to replace the death penalty with a maximum sentence of life without parole. The same committee had rejected similar bills several times in recent years. The bill will now move to the full House. Republican bill sponsor Rep. David Moore (pictured) said he thought the bill had a decent chance of passing in the House. Rep. Clayton Fiscus, one of two Republican members of the Judiciary Committee who supported the bill, said, "Our death penalty is a joke." He cited the high cost of capital trials and concerns about executing an innocent person as reasons for supporting abolition. Rep. Bruce Meyers, the other Republican who voted to advance the bill, said he was religiously opposed to capital punishment: “That was part of my conscience, the way I was raised. Native Americans view all life as being sacred.” All 9 Democratic members of the committee also voted in favor of the bill.

EDITORIALS: Montana Paper Calls for Repeal

A recent editorial in the Great Falls Tribune in Montana outlined some of the key problems with the death penalty as the state legislature considers its repeal. The editors expressed concerns about the risks of mistake with executions: “There is no way to take back an execution. That reason alone provides good cause to eliminate the death penalty in Montana.” The paper also noted that victims' families wait for decades for executions to be carried out, with the defendants receiving most of the attention: "[D]uring the long periods before their executions, these men received regular publicity and notoriety for their crimes. If they had been simply locked up for life without possibility of parole, people could have forgotten about them." The editorial concluded, “Our bottom line is that it’s risky to execute people when they might not be guilty. In addition, the cost and trauma of court cases that drag on for years is not worth the satisfaction some people receive from the finality of executions. We simply cannot afford to spend millions of dollars each on future death penalty cases.”  Read the editorial below.

Conservatives and Republicans Support Death Penalty Repeal Bill in Montana

A bipartisan group of legislators in Montana will introduce a bill to replace the state's death penalty with a sentence of life without parole. The sponsors include two Republicans and two Democrats. A coalition of conservative lawmakers, religious groups, and human rights groups support the repeal of capital punishment. Republican Sen. Matthew Rosendale (pictured), a member of Conservatives Concerned About the Death Penalty, said his stance on the death penalty did not cost him votes. “People know where I stand on the death penalty and I still got elected by a wide margin....[I]f you stand up and say, ‘I’m against the death penalty,’ you will not lose conservative votes.” He added that conservatives, many of whom are concerned about abortion, have a variety of reasons for opposing the death penalty: “Everyone has their own reasons why they support ending the death penalty. For some folks, it’s for fiscal reasons, and other folks oppose it for moral issues.”

NEW VOICES: Former Supporters Rethinking the Death Penalty Because of its High Costs

According to a recent article in the Wall Street Journal, some long-time supporters of the death penalty have recently shifted their positions, questioning whether the occasional execution is worth the costs incurred by taxpayers at a time when budgets are strained.  Gil Garcetti (pictured), the former district attorney of Los Angeles County, which is responsible for roughly one-third of California's 727 death-row inmates, recently remarked, “I was a supporter and believer in the death penalty, but I've begun to see that this system doesn't work and it isn't functional. It costs an obscene amount of money." A study of the death penalty in California in 2011 showed that the cost of housing a death-row inmate was $100,000 per year more than the cost of housing someone sentenced to life without parole. The same study concluded that just picking a jury in death penalty cases costs $200,000 more than the amount for non-capital cases. In Montana, a group called Montana Conservatives Concerned about the Death Penalty has joined the movement to repeal capital punishment because of its cost. Steve Dogiakos, the group’s director, said, “The death penalty is another institution of government that is wasteful and ineffective.” In Utah, Republican State Rep. Stephen Handy recently asked for a fiscal review of how much the state is spending on capital cases: "I don't have any illusion that either the Utah legislature or the people are ready to overturn the death penalty. But I want to start the dialogue," he said.

NEW VOICES: "It’s Time to End Montana’s Death Penalty"

In a recent editorial, the Great Falls Tribune reversed its long-standing position and called for the end of the death penalty in Montana. The paper cited the cost of maintaining the death penalty as a primary reason for why the punishment should be repealed. The editors joined in the efforts of a relatively new conservative group to end capital punishment: "[E]ven without definitive state data [on costs], we align with the Montana Conservatives Concerned about the Death Penalty. It’s time to end capital punishment in Montana." The editorial concluded, “In a just society, the only way to impose capital punishment is to provide a skilled, capable defense for the accused. Access to appeals must be part of the process. Anything less would constitute an unjust system. The economic reality is that it’s a system we simply cannot afford.” Read full editorial below.