Should states be required to disclose which drugs they use to kill people sentenced to the death penalty? Recently, the 9th Circuit Court said, “Yes,” while, in a separate case, the U.S. Supreme Court said, “No.” That judicial disagreement is complicating recently instituted death-penalty procedures, in which states use new combinations of death-inducing drugs—but are reluctant to reveal the sources of those drugs.
In the court of my opinion, however, the answer is, “Yes—states should be required to reveal the composition of their death cocktails and their sources.” And if they are, the show-and-tell requirement could be the beginning of the end for the death penalty.
The states involved in these two most recent cases are Arizona and Texas, who along with Missouri, are currently the most active of the 32 death-penalty states in the U.S. The states argue that, under current law, it is their legal duty to carry out the death penalty, and they do not want to be hampered by new rules. For people like me, who oppose the notion that a state has the right to kill someone—no matter how awful the crime he/she has committed—the issue of drug disclosure may represent a way to finally put the death penalty to death in this country.
Here’s how that might happen: As we’ve seen recently, several manufacturers of drugs that have previously been used for executions have stopped selling their products to state prison systems. The manufacturers—who want their drugs to be seen as helpful, curative and life-saving—don’t want them associated with the death penalty and death. Several of these drug companies are based in Europe, where the death penalty is considered anathema. (Countries that employ the death penalty cannot become members of the European Union.) Even US manufacturers are showing reluctance to allow their drugs to be used for executions. And for good reason: Have you seen the proliferation of recent news reports about the protracted deaths associated with some of the newly improvised death-drug cocktails?
The result has been that states have had to scramble for new death-inducing drug combos. They’ve moved on to other drugs—some of them generally used in veterinary care—and other deadly combinations not routinely prescribed for use together. Several states—unable to obtain the preferred execution drugs from manufacturers—are now getting their supplies from compounding pharmacies, who mix up small amounts of the drugs using the same components that a manufacturer would use. In many cases, states do not reveal the names of the compounding pharmacies.
The reason behind this secrecy is obvious: If the names of the new combinations and sources were made public, there could be negative publicity, driving more pharmacies and manufacturers to ban their products from use in executions. And then what would state prison systems do? Revert to the gas chamber? Firing squads? The guillotine? It’s hard to imagine a state wanting to go back to methods viewed as archaic and barbaric. In fact, most don’t want anyone to see much of anything associated with the death penalty: That’s why executions are usually carried out in the middle of the night; and why the identities of the executioners are kept private; and why witnesses to executions are often curtained off at the moment of the injection and don’t see the prisoner die.
So, it’s possible that full disclosure could make the death-penalty so difficult for state prison systems that they would have to abandon it. We’d have a market solution [a manufacturers' boycott] to a moral issue, and the U.S. would at long last join the rest of the industrialized world in ending the death penalty.
I’d even be okay if free-market Republicans took credit for that development. Whatever it takes.