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Analysis

How the Drug Shortage Has Slowed the Death-Penalty Treadmill

Only 4 states are currently carrying out lethal injections, and 10 are considering other methods.

Last year, during a U.S. Supreme Court debate over whether a specific cocktail of drugs could be used in executions, Justice Samuel Alito accused death-penalty opponents of pursuing a “guerrilla war” for their cause. Instead of trying to convince legislatures or courts to do away with capital punishment, he said during oral argument in Glossip v. Gross, activists and lawyers were instead cutting off supplies of drugs, and then, when states got different drugs, arguing that using them would amount to “cruel and unusual punishment.”

Opponents of the death penalty have taken exception to the term “guerilla war” — they see their work as a legitimate effort to save individual inmates from the kinds of botched executions that have made the news recently. “I think Justice Alito greatly exaggerated the power and influence of these so-called ‘activists,’” says Fordham University law professor Deborah Denno, while minimizing “the sway of other forces, namely an increasingly skeptical public and a medical community appalled by their unwitting involvement in this process.”

An undated image shows white chunks that had formed in the lethal injection drug the state of Georgia intended to use for the execution of Kelly Gissendaner.

But if it is a war, they are clearly winning.

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Using a three-drug cocktail, state prisons carried out hundreds of lethal injections from 1982 to 2009, when the pharmaceutical company Hospira began having problems manufacturing one of those drugs, sodium thiopental. Activists started alerting drug companies and governments in Europe that their drugs were being used in executions, causing companies to withhold them. States started scrambling for new sources and combinations of drugs and passed laws to shroud the process in secrecy — this week Virginia’s governor proposed such a measure. Defense lawyers attacked the secrecy1 and the new cocktails in court.

There was already a decline in executions — to 52 in 2009 from a high of 98 in 1999 — but the drug issues helped the number drop further, to 28, last year.

The State of Lethal Injection Drugs
Four states with the necessary drugs have scheduled executions in the coming weeks. Other states have been unable to acquire the lethal injection drugs or have been temporarily stopped by litigation in the courts.

We’ve determined the status of executions for the 31 states that allow the death penalty, as well as for the federal government. Here is the breakdown:

At least 10 states have recently considered other methods of execution, including the firing squad (Utah, Mississippi, Wyoming, South Carolina, Missouri, and Arkansas), the electric chair (Louisiana, Tennessee, and Virginia), and the gas chamber (Oklahoma). Mississippi has considered all three.