DEATH BY A THOUSAND LAWSUITS?:   The death penalty may be dying a slow death, by litigation.  The Republican-controlled unicameral Nebraska legislature voted 30-13 (with 17 Republican “yes” votes) to repeal that state’s death penalty. The reasons for lost Republican support are varied:  the inefficiency (and cost) of years of litigation to carry the penalty out; perceived incongruity with pro-life beliefs; fear of wrongful executions; and a shortage of drugs needed to carry out executions.

The drug shortage is the biggest culprit.  The death penalty in most states is carried out by a lethal injection of a three-drug “cocktail”:  (1) an anesthetic (to prevent pain); (2) a paralytic (to paralyze); and (3) potassium chloride (which stops the heart). But in early 2011, U.S. drugmaker Hospira announced it would no longer manufacture sodium thiopental, the primary anesthetic used in the lethal injection cocktail.

Hospira’s exit from the market left States scrambling for a substitute, including purchases of the drug from foreign markets. When death penalty lawyers complained that States lacked legal authority to import sodium thiopental from foreign countries, the Obama Administration seized State stockpiles of the drug, claiming its possession violated federal law.  States then turned to pentobarbital, manufactured by Danish drug company Lundbeck.  But by summer 2011, Lundbeck, too, announced it was denying distribution of the drug to U.S. prisons.

The State of Oklahoma has turned to midazolam hydrochloride as a substitute anesthetic, though it hasn’t specifically been approved by the FDA as such.  It is widely used off-label, however, for anxiety and sedation.  On Thursday, the Supreme Court will hear an Eighth Amendment challenge, Glossip v. Gross, to Oklahoma’s use of midazolam, which claims that its use constitutes “cruel and unusual punishment” because midazolam isn’t foolproof at inducing unconsciousness.

The Supreme Court has never struck down a specific death penalty method as unconstitutional.  Indeed, in 2008, the Supreme Court upheld the constitutionality of a four-drug lethal injection cocktail in Baze v. Rees.  The Court suggested, however, that a state may violate the ban on cruel and unusual punishment if it continues to use a lethal injection method, without sufficient justification, in the face of superior alternative procedures.  In the Glossip case pending before the Court, therefore, Oklahoma asserts–in an excellent brief authored by Oklahoma Attorney General Scott Pruitt and well-known constitutional lawyer David Rivkin— that the inmate must carry the burden of proving that there are, indeed, superior alternative anesthetics available. They assert:

This Court requires Petitioners to demonstrate the availability of a constitutional alternative method of execution for good reason. Capital punishment is constitutional, and this Court has made clear that States must have a means of carrying it out, even if some pain results as an inescapable consequence of execution. Accordingly, challenges to a method of execution must demonstrate that there exists a feasible alternative method that will result in substantially less pain. Otherwise, a petitioner’s challenge would constitute a challenge to the death penalty itself – an issue foreclosed by the Constitution.

In the event that the Supreme Court uses Glossip to reopen the constitutionality of lethal injection, States are now bringing back older methods of execution including nitrogen gas, the electric chair and firing squad.

States’ adopting a variety of methods is probably the best way to ensure that the death penalty can survive these liberal/progressive “lawfare” tactics.

UPDATE:  Midazolam’s use for anxiety and sedation is “on label,” but its use for maintenance of general anesthesia is off-label.  It should be noted, however, that off-label uses of all FDA-approved drugs is perfectly legal and indeed, common.