Nearly 30 years after United States Supreme Court Justice Harry Blackmun reasoned that he could no longer “tinker with the machinery of death,” some executing states continue trying to prop up a fundamentally flawed and immoral death penalty system. But don’t be fooled: no tweaks will make any method of execution humane.
South Carolina is the latest state to try. On Friday, Governor Henry McMaster signed into law legislation empowering Palmetto State officials to execute prisoners by electrocution or firing squad. If lethal injection drugs are unavailable, a death row prisoner in South Carolina will be forced to choose between two methods of execution most Americans believe to be cruel and unusual punishment.
Other states are coming to the same conclusion as Justice Blackmun. Just this year, Virginia became the twenty-third state to abolish the death penalty, and the first in the old confederate South. This follows a year in which state executions were the lowest in nearly four decades.
Since the last execution in South Carolina in 2011, state officials have been unable to procure lethal injection drugs. “We’ve exhausted all our abilities to find the drug,” Director of South Carolina’s Department of Corrections recently declared about the state’s quest to obtain pentobarbital from either a Food and Drug Administration-approved manufacturer or compounding pharmacy.
Why can’t South Carolina find drugs for use in executions? Because there is no legitimate market for lethal injection drugs. Pharmaceutical companies invent medicines to treat disease, ease pain, and save lives – not to cause extreme suffering and death. For that reason, they won’t sell their products to prisons to be used in executions. Every affected pharmaceutical company has established contractual controls to ensure that their medicines are not improperly diverted for use in executions, and have even sued states that try to subvert those controls.
Many states have responded to the healthcare sector’s concerns by ceasing executions altogether. In Ohio, the state’s governor announced an unofficial moratorium on executions and has repeatedly cited public health concerns raised by pharmaceutical companies who have communicated their opposition to the misuse of their medicines to state officials.
States that have persisted with the use of lethal injections have done so using illegally and illicitly sourced drugs, and in some cases have seen executions go horribly wrong. In Alabama in 2018, prison officials stabbed Doyle Lee Hamm with needles for over two hours, puncturing his bladder as they desperately poked and prodded him to find a vein. Medical experts have testified in court that execution by lethal injection using pentobarbital, the drug South Carolina attempted to acquire, produces “extreme pain, terror, and panic”.
In reality, it is futile to split hairs over the relative barbarity of execution methods. The electric chair is an appalling torture to inflict on a human being, which has seen prisoners’ heads burst into flames mid-execution; while the lethal injection was described by a Supreme Court Justice as “the chemical equivalent of being burned at the stake”.
In Oklahoma, following a botched lethal injection execution which left the death chamber a “bloody mess”, state officials concluded that lethal injection executions were “inhumane”.
Like South Carolina, Oklahoma attempted in 2018 to introduce an alternative method of execution: lethal gas. But the state couldn’t find a way to do so constitutionally and has resumed trying to procure lethal injection drugs.
South Carolina, Oklahoma, and other retentionist states are still trying to prop up a failing system. But tinkering with the machinery of death won’t fix the death penalty’s problems. It’s time to abolish.
Maya Foa is Joint Executive Director of the human rights charity Reprieve