By Renuka Rayasam/ Kaiser Health News
In 2011, Jeffrey Motts was executed in South Carolina. More than a decade later, the state hasn’t carried out another execution because officials have struggled to obtain the drugs needed for lethal injection.
Now, to resume executions, lawmakers are debating a bill that would further shroud the state’s lethal injection protocols from public scrutiny by shielding the identities of the drug suppliers.
More than a dozen states have passed such “shield” laws that conceal key details about the lethal injection process, including the identities of the execution team or drug suppliers, according to the Death Penalty Information Center, a nonprofit research organization. All 17 states that carried out executions between January 2011 and August 2018 withheld some information about the process. Georgia even calls information about its executions a “state secret.”
Backers of such laws say they are needed to protect suppliers and medical professionals involved in executions. But Austin Sarat, a political science and law professor at Amherst College, who teaches courses on the death penalty, said such policies conceal the problems connected to lethal injection.
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“The legitimacy of capital punishment has been tied up with the promise that it’s safe and humane,” he said. Secrecy hinders “the public’s ability to judge what is being done in its name.”
Still, it’s far from clear whether — or how — South Carolina and other states will be able to obtain the needed drugs, even with a cloak of secrecy. For more than a decade, many U.S., European, and Asian pharmaceutical companies have opposed the use of their medications in executions, arguing the drugs they manufacture should be used to heal, not kill, people. Some pharmaceutical companies have even sued states to prevent their drugs from being used on death row.
“With increasing frequency, drug companies don’t want to be associated with this process,” said Eric Berger, a constitutional law professor at the Nebraska College of Law who researches the death penalty.
That opposition has brought executions in many states to a grinding halt. Only six of the 27 states that allow the death penalty carried out executions in 2022, totaling just 18 executions nationwide, down from 98 in 1999.
But it’s still often the method of choice for state prisons. Since 1982, when Texas became the first state to use lethal injection, more than 88% of U.S. executions have been carried out by lethal injection, according to the Death Penalty Information Center.
The U.S. Supreme Court has upheld the lethal injection procedures that have come before it as constitutional, said Berger. Some states authorize other protocols including electrocution, lethal gas, hanging, and firing squads. But lower courts have said some of those execution methods violate state law or the Eighth Amendment’s ban on cruel and unusual punishment. In South Carolina, for example, a state court halted executions by electric chair or firing squad after state lawmakers approved those methods in 2021.
The proposed South Carolina shield law would help the state restart executions after a more than decade-long pause, Republican state Sen. Greg Hembree, who sponsored the bill, said during a committee hearing.
“You’ve got a law and can’t carry it out because of some corporate policy,” he said.
Even if approved, the measure does not guarantee the state will be able to obtain the drugs. Idaho instituted a similar shield law last year, but the state has had so much trouble finding supplies that Republican Gov. Brad Little signed a law on March 24 that allows execution by firing squad — a method last used in the U.S. by Utah in 2010.
In Ohio, pharmaceutical companies threatened to stop selling drugs to the state if they found any of their medications had been diverted for lethal injections. In 2020, the state’s Republican governor, Mike DeWine, placed a moratorium on executionsbecause state officials had been unable to find execution drugs, despite Ohio’s secrecy law.
To circumvent drugmaker opposition, some states have resorted to elaborate practices to obtain the drugs. In 2011, federal agents seized doses of a lethal injection sedativeused in South Carolina and other states for being illegally imported, while Idaho officials boarded private planes that year and the next with thousands of dollars in cash to buy drugs from compounding pharmacies in Utah and Washington.
In 2018, an Oklahoma official admitted to calling pharmacies “on the Indian subcontinent” and turning to what he described as “seedy” people to find such drugs. In 2021, Oklahoma resumed executions by lethal injection after a six-year hiatus but did not disclose where it obtained the drugs.
And Texas has executed five people so far this year after an unsuccessful legal challenge from three of the men on death row who argued that the state extended the use-by dates of the lethal injection drugs.
The U.S. is one of at least 18 countries where one or more executions took place in 2021, according to Amnesty International, a human rights advocacy group headquartered in London that opposes the death penalty. Most U.S. executions take place in the South and Black men are disproportionately executed, according to the Death Penalty Information Center.
Lethal injection protocols usually include a sedative, followed by a drug that paralyzes the body and one that stops the heart. But some states use only one drug, dosed to be lethal. The drugs that states use for executions have been approved for uses such as anesthesia, but their off-label use for lethal injection has not been tested.
The drug doses are determined without considering a person’s medical condition or history. Often things go wrong. Last year, seven out of 20 execution attempts in the U.S. were “visibly problematic,” according to the Death Penalty Information Center, including cases in which executioners couldn’t find a person’s vein or failed to follow protocol.
Typically courts and legislatures, not medical professionals, determine lethal injection protocols. In Montana, lawmakers are trying to broaden the types of substances that can be used in lethal injection after a state court said the previous protocol violated state law. One lawmaker suggested using fentanyl, something the Trump administration also reportedly considered doing.
“Lethal injection is not a medical act, but it’s designed to impersonate one,” said Dr. Joel Zivot, an anesthesiology professor at Emory University who reviews autopsies of people who die by lethal injection and is a critic of the practice.
Zivot’s research sparked an NPR review of more than 200 lethal injection cases. In 84% of them, the deceased showed signs of pulmonary edema, which causes a feeling of drowning and suffocating. “That is very painful,” said Zivot.
Last year, two men in Oklahoma asked to be executed by a firing squad rather than lethal injection because they argued the former would be quicker.
Of all the ways to execute people, lethal injection has been the method most riddled with problems, said Sarat, the Amherst professor.
Missouri passed its shield law, concealing who participates in executions and where the state obtains drugs, in 2007, after a doctor testified that he had made mistakes while administering lethal injection drugs.
Alabama recently announced it would resume executions after three botched lethal injections last year. One person’s arm was cut open to find a vein to deliver lethal injection drugs. Two other executions were halted when officials couldn’t find the men’s veins at all. Yet an internal state review revealed little about what went wrong, including whether a medical professional was involved.
“It’s not surprising that every time the secrecy veil has been pierced something illegal or immoral or unethical has been discovered,” said Robert Dunham, who stepped down in January as the executive director of the Death Penalty Information Center.
Renuka Rayasam, Senior Correspondent, joined KHN in April 2022 from Politico, where she wrote for the magazine, covered Texas policy and politics, and helped launch a daily covid-19 briefing called “Nightly.” She has worked for the Austin American-Statesman and U.S. News & World Report. She also spent six years freelancing from Berlin, Germany, where she wrote for a variety of newspapers and magazines including The New Yorker, The Atlantic, the Los Angeles Times and The Wall Street Journal. She has a master’s degree in international affairs from Columbia University and a bachelor’s in German and political economy from the University of California-Berkeley.