JURIST Guest Columnist William W. Berry III of the University of Mississippi School of Law discusses the constitutional questions and unclear future of the death penalty …

The State of Mississippi legislature has recently passed a bill [PDF] to amend its death penalty statute to provide for additional alternative methods of execution if lethal injection becomes unconstitutional, and to broaden the acceptable techniques of lethal injection. Specifically, the new statute provides that if lethal injection becomes unconstitutional, the state must use the gas chamber as the method of killing. If then the gas chamber also becomes unconstitutional, the state must use a firing squad as the method of execution. Finally, if lethal injection, gas chamber, and firing squad all become unconstitutional, the state must execute using electrocution.

This new approach is a bizarre reaction to the current lethal injection crisis where the state wants to make sure that it has some way to execute the 47 inmates on its death row. While other states have increasingly explored other methods of execution, Mississippi is the first to sequentially stack and prefer a series of methods. Like most states, the new Mississippi statute does not provide a choice of method to inmates.

This concern with the efficacy of execution methods underscores the broader death penalty landscape, with states facing increasing difficulty in obtaining the needed drugs to conduct lethal injection procedures. The drug in particular that states cannot obtain is the anesthetic given before the lethal drugs. The European companies that made such drugs, most often sodium thiopental or similar barbiturate, have ceased manufacturing them, and American companies have not attempted to fill the void, both because of FDA restrictions and public stigma that might attach from manufacturing death penalty drugs.

As states have run out of sodium thiopental, some began to use pentobarbital as a substitute, but supplies of that drug have dried up as well. The most recent substitute adopted by a number of states is midazolam, an anesthetic used in surgeries. Indeed, the state of Arkansas has chosen to execute eight inmates in a ten-day period in April largely because its supply of midazolam faces an upcoming expiration date.

These approaches by states in executing inmates remain troublesome on two levels. First, the procedures in many cases are experimental—states are using new protocols for execution and the inmate receiving the lethal injection becomes the guinea pig for their approach. For obvious reasons, states have not tested such approaches before, but there remains an alarming lack of medical involvement in developing these procedures.

Second, in many lethal injection protocols, the second drug (after the anesthetic) is a paralytic, making it impossible to determine the effect of the lethal injection on the inmate with respect to anesthesia and pain. While assuaging the visual picture for observers (inmates appear to drop off into a peaceful sleep), the use of a paralytic hides the success (or failure) of the anesthetic. If the anesthetic wears off, the inmate receives the sensation of being burned alive from the inside, with the added torture of not being able to move in response to this excruciating pain. Several botched lethal injections (where the anesthetic did not work) have demonstrated the potentially gruesome nature of this kind of punishment. There may be constitutional issues with the use of secrecy in this context.

Inmates have challenged the use of midazolam specifically, as having a ceiling effect, where additional dosage does not lengthen the period of sedation. With no clinical trial to observe, states have simply increased the dosage amount for midazolam and hoped for the best. The paralytic, though, makes it very difficult to determine whether (and how) such an approach has worked in recent lethal injections.

In 2015, the Supreme Court considered [PDF] the constitutionality of the lethal injection protocol using midazolam, upholding the approach as a punishment that did not fall within the Eighth Amendment’s proscription against cruel and unusual punishments. In adopting a very high standard for showing unconstitutionality (proving a substantial risk of severe pain and showing a feasible statutory alternative), Justice Alito’s opinion chastised the “guerrilla warfare” attacks on the availability of lethal injection drugs, emphasizing that if a punishment is constitutional, there must be a constitutional way to impose it.

His opinion, however, demonstrated the manner in which the court has muddied the distinction between the punishment (the death penalty), the method (lethal injection), and the technique (three-drug protocol with midazolam). All three must meet the requirements of the Eighth Amendment. Despite the similar nature of the question—whether the punishment, method, or technique is a cruel and unusual punishment—the court uses different tests to assess each issue.

With respect to the punishment and its application, the court uses its evolving standards of decency test. This test looks to the majority practice and then requires the court to determine whether the application of the punishment satisfies one or more purposes of punishment. As for the technique, the court uses its “substantial risk of pain” test as it did in Glossip v. Gross [PDF], and its predecessor, Baze v. Rees, which upheld Kentucky’s lethal injection protocol in 2008. It is unclear whether the former test or the latter test would apply to challenges to the method itself, particularly because there have been no recent challenges to methods, only techniques.

The constitutionality of statutes such as the proposed Mississippi statute could hinge on which test the court elects to apply. If the evolving-standards-of-decency test constitutes the applicable standard, the court would look to whether other states use the methods in question. Currently, thirty-three states use some form of lethal injection. Not counting Mississippi, only eight states allow electrocution, five states allow the gas chamber, three states allow hanging, and two states allow firing squads. Under the court’s doctrine, no method other than lethal injection would satisfy the majoritarian part of the test, as an overwhelming majority of jurisdictions do not use such methods. The second part of the test, the application of the purposes of punishment, would be more uncertain. The central question would be whether the method (electrocution, gas chamber, hanging, or firing squad) would satisfy the purpose of retribution or the purpose of general deterrence. Interestingly, the court has never had a case where the results of the two evolving standards inquiries diverge.

If the court applied the Glossip test, the question would be whether the method created a substantial risk of severe pain. If the petitioner could make such a showing, the petitioner would then have to show that an available alternative method offered a substantial lower risk of severe pain.

A petitioner offering such a theory with respect to lethal injection had his petitioner for certiorari recently denied by the court [PDF]. Alabama death row inmate Thomas Arthur amassed significant evidence that lethal injection would create a much more substantial risk of severe pain because he has a heart condition and requested death by firing squad. Justices Sotomayor and Breyer dissented to the denial of certiorari, arguing that Arthur had met the Glossip standard.

Despite the doctrinal confusion, the court has never held that a method or technique of execution was unconstitutional. If, however, states continue to experiment with old methods and techniques or create new ones, it remains to be seen whether the court might intervene in a given circumstance.

Given the continued issues with obtaining lethal injection drugs and renewed efforts by states to find alternative methods and techniques of execution, the future of the death penalty remains both murky and unpredictable. To be sure, the myriad of issues relating to the legality of methods and techniques has spurred action by states in a number of different directions. What makes this even more interesting is the gradual decline of the death penalty over the past decade in terms of public opinion, number of new death sentences, and number of executions themselves. The current rash of action might be the impetus to return to the heyday of the 1990’s, or more likely, the last gasp of the death penalty before it gradually disappears.

William Berry is an Associate Professor of Law and Frank Montague, Jr. Professor at the University of Mississippi. Professor Berry has focused his scholarly work on the Eighth Amendment and its application to criminal sentencing, including the death penalty. He has published widely, including articles in the Texas Law Review, the Southern California Law Review, and the Wisconsin Law Review, to name a few. In addition, his doctoral dissertation for his D.Phil. from the University of Oxford (UK) assessed proportionality review in capital cases by the Ohio Supreme Court over a twenty-year period.

Suggested citation: William W. Berry III The Execution Methods Crisis, JURIST – Academic Commentary, April 3, 2017, http://jurist.org/academic/2017/04/william-berry-the-execution-methods-crisis.php.