While the execution of Cleve Foster has been stayed temporarily based on other factors, the new three-drug protocol Texas may open the door for death penalty opponents to move forward in arguing that lethal injection is cruel and unusual punishment and therefore unconstitutional. As I’ve noted, the shortage and eventual disappearance of sodium thiopental has prompted states to take…interesting steps to be able to execute in a timely fashion.
The Atlantic reports on a study that suggests how death penalty opponents are going to press on the choice of a replacement drug made by Texas – sodium pentobarbital. The state will simply substitute pentobarbital for thiopental in its three-drug protocol. While the study is put out by groups strongly interested in ending the death penalty, there is a serious discrepancy to address.
The study notes that the three drug protocol Texas wants to use to put down death row inmates is not permitted for use by Texas veterinarians seeking to euthanize an animal. While the Texas Department of Criminal Justice has absolute power in setting the terms of execution drugs, the rhetorical potency of this contrast is palpable.
However, the legal power is not necessarily clear, in part because the drugs being used are not at issue in Foster’s case. But more importantly, court cases on this point have not seen the potential for harm from these drugs to be enough to warrant prohibition. Baze v. Rees is perhaps the most relevant Supreme Court case, where Justice Stevens noted that one of the other drugs in the common three-drug protocols – pancuronium bromide – is generally proscribed by veterinarians, and illegal in many states for that purpose. At least one of those states allows its use in executing prisoners, and Justice Stevens concurred with the Court’s decision that the protocol at issue did not meet the standards for prohibition based on cruel and unusual punishment – substantial or objectively intolerable risk of serious harm.
Personally, I see the more likely activity in response to continued drug shortages and changes in protocol to come more from either the bully pulpit provided by a state setting higher standards for animals than condemned prisoners, or the actions of the federal government to deal with the issue. If it does happen in the courts, someone will probably have to die horribly from the executioner’s needles.