The prolonged execution in Arizona looked troubling, but was it unconstitutional? The U.S. Supreme Court, which upheld the use of lethal injection six years ago, has held that “an isolated mishap” during an execution does not violate the Eighth Amendment. A question and answer look at the current state of executions.
Q: Why did Arizona use a two-drug combination that was also involved in a similar lengthy execution in Ohio?
A: After more than three decades of using the same three-drug combo to put hundreds of inmates to death with few problems, states have scrambled in recent years to find alternative drugs because of a shortage rooted in European opposition to capital punishment. Some states have obtained supplies of compounded pentobarbital, which doesn’t undergo the same type of federal regulations as regular pentobarbital, which is now unavailable. Other states, like Arizona, are turning to midazolam, a sedative, and hydromorphone, a painkiller.
Q: What caused the shortage?
A: Nine years ago, the European Union banned the export of products used for execution, citing its goal to be the “leading institutional actor and largest donor to the fight against the death penalty.” But beefed up rules in Europe have been felt most strongly in the United States, with shortages becoming chronic. In addition, U.S. manufacturers are now putting restrictions on the use of their drugs for executions.
Q: The Arizona execution lasted almost two hours. Doesn’t that constitute cruel and unusual punishment?
A: The answer depends on whether the inmate felt pain — the state says he didn’t — and whether any intentional actions to inflict pain can be proven. In addition, the U.S. Supreme Court has held that “an isolated mishap” during an execution does not violate the Eighth Amendment, “because such an event, while regrettable, does not suggest cruelty or a ‘substantial risk of serious harm,”’ according to a 1947 decision allowing Louisiana to return an inmate to the electric chair after a botched attempt a year earlier.
Q: Have death row inmates challenged any of the new drugs?
A: Defense attorneys have sued over compounded pentobarbital as posing a potential threat since its purity and effect can’t be guaranteed. Yet so far, executions with compounded pentobarbital in Missouri and Texas haven’t been problematic. Attorneys have also challenged the use of midazolam and hydromorphone, arguing that they could cause pain as inmates struggle to breathe.
Current legal challenges:
-- Oklahoma: Twenty-one death row inmates are seeking to halt any attempt to execute them using the state’s lethal injection protocols, which they allege present a risk of severe pain and suffering in violation of the U.S. Constitution. The inmates’ lawsuit followed the state’s botched April 29 execution of Clayton Lockett using a new three-drug method.
-- Missouri: Death row inmates claim the state’s refusal to name the drugmaker providing its execution drug, even privately to attorneys, makes it impossible to know whether the drug is suitable for an execution, or violates the constitutional guarantee against cruel and unusual punishment.
-- Ohio: Attorneys have unsuccessfully argued that the two-drug combo created an unconstitutional risk of suffering because of a phenomenon known as “air hunger” in which people experience terror as they strain to catch their breath.