The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The death penalty may be constitutional, but it is becoming increasingly difficult to carry out. Last term, in Glossip v. Gross, the Supreme Court turned away another challenge to state lethal injection protocols. At oral argument, and in his opinion for the court, Justice Samuel Alito noted that opponents of capital punishment have made it increasingly difficult for states to obtain drugs that could be used for lethal injection, while simultaneously challenging the acceptability of those drugs states can obtain in court. Among other things, death penalty opponents have pressured domestic manufacturers to stop producing the relevant drugs or selling them to state correctional institutions and filed suits to limit alternative options, such as importation of the drugs from overseas. This has been a successful tactic.
States are not giving up on their efforts to carry out executions, however. BuzzFeed's Chris Geidner and Chris McDaniel document the lengths to which some states will go to obtain the drugs required for their lethal injection protocols. Among other things, some states are seeking to obtain these drugs from overseas, despite Food and Drug Administration limits on their importation for lethal injection purposes. Their report begins:
At least three states—Texas, Ohio, and Arizona—have hired outside lawyers to help them obtain execution drugs that the U.S. Food and Drug Administration and a related court order have declared are illegal to import, BuzzFeed News has learned.
At least two of those states, Arizona and Texas, BuzzFeed News reported this past week, purchased execution drugs from overseas this summer. The states purchased sodium thiopental from Chris Harris, a drug salesman in India who has sold execution drugs to U.S. states at least six times in recent years, although none of the drugs from those shipments have ever been used in an execution.
The Arizona and Texas shipments were intercepted at airports in late July and are being held by the U.S. Food and Drug and Administration (FDA), which has repeatedly warned states and others that it will not allow importation of sodium thiopental under a federal court's 2012 order. Nonetheless, both states hired outside counsel to assist in their efforts to get the drugs.
As Geidner and McDaniel note, the last execution in Ohio, in January 2014, did not go so well, and the state has not held an execution since. The state has, however, spent more than $30,000 on legal advice to help it obtain lethal injection drugs. Unless and until the drugs are obtained, no more executions will take place in the state.
Efforts by death penalty abolitionists to have the capital punishment declared unconstitutional have failed. Yet the effort to prevent most executions from taking place may be succeeding.