The future of capital punishment in America is in danger. Following three botched lethal injection death sentences last year, the U.S. Supreme Court, this month, will reevaluate the constitutionality of the lethal injection drug process, specifically a drug called midazolam, used during these executions. This review, however, is much different from the Supreme Court’s 2008 review of lethal injections, as the status of lethal injection drugs has changed drastically over the past few years. Whatever the Supreme Court rules, states must continue to use and reform lethal injection as the primary form for capital punishment.
Lethal injection, though viewed by the majority of Americans as a reasonable form of execution, is a practice that is facing drastic drug shortages. European export bans combined with U.S. District Court bans in the past few years have forced states to scramble for alternative drugs to use during their lethal injections. Even Texas, the state with the most executions in the last 40 years, expects to run out of drugs to use this month. These drug shortages have forced states to create contingency plans in the event that lethal injection drugs run out or if they are declared unconstitutional.
To potentially deal with these shortages, Utah decided last month to lift its ban on firing squad death sentences. Although it will only be used as a backup to lethal injection, the implications of these actions stretch beyond the effects it may have on the potential deaths of Utah’s nine death row inmates. Utah’s decision illustrates how states are preparing for the worst, and that they still would prefer to continue capital punishment even in the absence of lethal injections.
This presents a serious issue. If the Supreme Court strikes down the use of midazolam or other drugs used during lethal injections, it will make it all the more difficult to execute these injections, and even more states will turn to alternative methods of execution. For instance, if lethal injection cannot be given, New Hampshire authorizes hangings. Furthermore, if lethal injection is ever held to be unconstitutional, Oklahoma authorizes electrocution and Wyoming authorizes lethal gas.
These alternatives should not become primary methods of execution. Hanging, though the most popular form of capital punishment for the majority of U.S. history, sometimes leads to prolonged strangulation or decapitation, and electrocution sometimes leads to inmates catching on fire or needing multiple jolts. It is the gruesome nature of these botched executions that led the majority of U.S. states to declare these alternatives unconstitutional, and the American people agree. Sixty-seven, 52, 54 and 53 percent of Americans believe that hanging, lethal gas, electrocution and firing squad, respectively, are cruel and unusual punishments. To use them as the only form of capital punishment, therefore, would not be the right decision, as the way in which these types of capital punishments go wrong make them inhumane and immoral to use.
Of course, choice plays an important factor. In fact, a prisoner on death row in Utah chose execution by firing squad in 2010, citing that it was “easier.” Other proponents of the firing squad may point to how firing squad has not had a botched execution since 1900, whereas lethal injection has the highest botched execution rate, around 7 percent, of any other form of execution. On the other hand, this rather startling fact does not mention that there have only been 34 firing squad executions since 1900 compared to over a thousand lethal injection death sentences. Moreover, lawyers presented to the Supreme Court that lethal injections are carried out by “sloppy, untrained prison personnel unqualified to conduct the sophisticated medical procedure.” If it is correct that these untrained personnel have a tough time even finding veins in which to inject the drugs, then state governments can solve this high level of botched executions by focusing on improving the process through trained personnel. This will lead to effective and more reliable executions going forward.
Support for the death penalty has dropped dramatically in the past 20 years, as it now reaches a 30-year low of 63 percent support in a Gallup poll and 55 percent support in a Pew Research Center poll. Although it may take some time before the abolishment of capital punishment, the biggest push for now should be made to reform the lethal injection process. This would decrease the number of botched executions and prevent alternative death sentences like firing squad or electrocution from once again becoming primary forms of execution.
Jared Fogel is an Opinion columnist for The Cavalier Daily. He can be reached at j.fogel@cavalierdaily.com.
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