The nation’s execution community experienced another setback recently when Tennessee’s governor called off an execution with only an hour to go, postponing it and four others until at least until 2023. Once again, an execution had to be halted due to the drug problem has dogged America’s executioners for some time. Like a lot of other unfortunates, they’re just having a helluva time getting their hands on the drugs they need to get the job done – or at least getting their hands on the drugs legally. We might well view this as something of a shot-in-the-arm for the capital punishment movement’s anti-drug faction, were it not for the judicial postponement of an April firing squad date – for a South Carolina prisoner who had chosen that option rather than the electric chair, after that state too experienced a drug problem.
In the Tennessee case, the issue was that a sedative that was to be the third-to-last drug administered to the about-to-be-executed had apparently not been tested for impurities. No doubt, your more fundamentalist death penalty advocates are troubled to see an execution delayed out of concern for the purity of something being administered to someone scheduled to be killed in a matter of minutes. This latest Tennessee misfire comes in the wake of a Guardian report of the state’s 2017-2020 “secretive expenditure” of $190,000 for three drugs used in two executions over that period. (And this in a state with a 99-page lethal injection manual.)
The difficulties for the shoot-em-or-shock-em side of the death penalty world began a few years back when, after a couple of guys caught fire in the electric chair, the courts started adopting the posture that while the death penalty constitutes license to terminate, it is not licence to torture. Death by the needle then became all the rage and the question of getting good drugs has come to the fore. Over the years, Tennessee’s “secretive” operations have proved to be no aberration. In fact, almost all death penalty states have passed secrecy laws regarding their execution processes and do not reveal the source of the drugs used in them.
Problems encountered include ethics committees that don’t believe the medical profession should have anything to do with executions, American pharmaceutical companies opting to cease production of drugs involved in the process, and member countries of the non-and-anti-death-penalty European Union blocking the use of drugs produced in its member states for American executions. This has led a number of the 14 currently active executer states – arguably the nation’s most aggressive law enforcers – to engage in drug acquisitions ranging from legally questionable to clearly illegal.
The state of Arizona, for instance, was forced to halt one execution after it was barred from using an execution protocol drug because it had obtained it illegally. States have purchased from pharmacies not licensed to operate in their states and from overseas operators selling them non-FDA-approved drugs, including a pharmaceutical company operating out of a London, England driving school storefront, and an Indian company known to have lied to a supplier as to the intended use of its drug in an execution proceeding. Missouri once sent an official to Oklahoma to buy drugs with $11,000 in cash, so as not to disclose the identity of the seller.
Meanwhile, the stuff the states do manage to get their hands on often produces pre-death symptoms as difficult for observers to watch as charred bodies in the electric chair. The result has been continual lawsuits over whether their these proceedings constitute cruel and unusual punishment. For instance the Tennessee drug in question had not been tested for endotoxins which medical authorities say could cause side effects like respiratory failure or other visibly distressing symptoms, and a federal judge is considering claims that this sedative, also administered in Oklahoma, is ineffective, even if pure, in its function of keeping prisoners from feeling pain as they die.
Meanwhile the executioner states can’t stay out of trouble even when they stay off the black market. A ketamine maker that had informed the state of Nevada of its refusal to sell it the drug for use as a sedative in execution purposes later found itself having to call on the state to desist from using its product after Nevada authorities had obtained it from a distributor without informing it of its intended use.
So what’s an executioner to do? Now, for sure, nobody asked me, since I’ll be a happy man the day the death penalty dies (in humane fashion, of course). But in the spirit of fair play I thought I’d offer some advice. I’m thinking maybe it’s time for a serious course correction on Death Row. Really, isn’t it but a matter of time before the renewable energy people decide that their sunshine or their wind are not going to be used in an execution? And there goes the electric chair. And when does the gun industry decide that a cheap way to assuage some of the nation’s anti-gun sentiment might just be to ban the use of its products in executions? And there goes the firing squad. So, with the pharmaceutical industries balking, the courts interfering, and even our NATO allies standing in our way, isn’t it time you began to start thinking outside the box?
Have you considered crucifixion? It’s low tech. No need to worry about any fretting ethics committees, unreliable allies, or even the state next door. I’m pretty sure we’re still producing nails in this country. And there’s really no question of whether the procedure works as intended.
And before you say, “Silly liberal, just how is crucifixion supposed to evade the whole obstacle course the liberal judges have created to halt the righteous course of executions?” Let me say to you that you need to look at things with a fresh eye. If there were ever to be a Supreme Court that was going to rethink the whole hand-wringing “cruel and unusual punishment” argument, wouldn’t this be the one?
This content originally appeared on Common Dreams - Breaking News & Views for the Progressive Community and was authored by Tom Gallagher.