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.”
But if it is a war, they are clearly winning.
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.
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:
Only four states are currently carrying out lethal injections. Texas, Missouri, and Georgia use a single drug, pentobarbital (Georgia is set to use the drug for an execution on Tuesday). Alabama has scheduled an execution next month, and uses three drugs in its protocol, including midazolam and pentobarbital. The state’s Department of Corrections has refused to divulge the source of those drugs, which were used for an execution in January, the state’s first in two years.
Florida has also enveloped its lethal-injection process in secrecy — and may be able to carry it out — but executions are on hold there because of a Supreme Court decision, Hurst v. Florida, which invalidated the state’s rules surrounding how judges hand down death sentences.
Three active execution states have drugs that are about to expire (Virginia, Arizona, and Arkansas). Many states have turned to small compounding pharmacies, which make a version of pentobarbital that loses its potency more quickly than the type manufactured by larger companies.
Three states (Arizona, Arkansas, and Oklahoma) are tied up in court battles over their drug sources. In Arizona and Arkansas, state officials have said the drugs they have on hand could reach their expiration date before those battles conclude.
The difficulty of finding a source of drugs has led Louisiana to halt executions until at least July, and Ohio’s execution chamber will not be in use until 2017. Several of the 11 executions Ohio had planned for this year are rescheduled for as late as 2019. Nebraska is also looking for execution drugs, although the state legislature repealed the death penalty; a public referendum on the punishment is expected in November.
Since 2010, the year the drug shortage began to take hold, 17 states and the federal government have carried out no executions. Five other states (Delaware, Idaho, Mississippi, South Carolina, and South Dakota) have carried out no executions since 2012.
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.