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Capital Punishment in the United States Explained

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In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
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How to kill: America's death penalty dilemma

With supplies of lethal injection drugs running low and new sources increasingly difficult to come by, states are grappling with alternatives. Virginia is the latest.

Its solution: Bring back the electric chair.

The bill has passed the state House and Senate, and now awaits the governor's signature.

Here is how the United States got to this point:

Opposition to the death penalty is rising ...

In 1994, Gallup found that 80% of Americans supported the death penalty. Fast-forward to today: A poll last October showed the support had fallen to 61%.

... and more states are putting executions on hold

Those are in addition to the 19 states and the District of Columbia, which have outlawed capital punishment. Since 2009 alone, Connecticut, Illinois, Maryland, Nebraska and New Mexico have abolished the death penalty.

But capital punishment isn't on its way out

Not by a long shot. In just the last 6 years, 17 states have executed 242 inmates. That's as of March 24. 3 states account for more than 1/2 of those: Texas, Florida and Oklahoma.

The most common method? Lethal injection

Lethal injection is the primary means of execution in all 31 death penalty states. In 1982, Texas became the 1st state to execute an offender via lethal injection. Since then, the United States has carried out 1,425 executions, and only 171 have relied on another method.

But the drugs are drying up ...

Lethal injection initially required a 3-drug cocktail: The 1st (sodium thiopental or pentobarbital) puts the prisoner to sleep, the 2nd (pancuronium bromide) brings on paralysis, and the final agent (potassium chloride) stops the heart.

In 2010, European drug manufacturers began to ban exports of the cocktail ingredients to the United States. The following year, concerned about the use of sodium thiopental in executions, Illinois-based Hospira stopped making the drug, and Denmark-based Lundbeck banned U.S. prisons from using its pentobarbital. The United Kingdom also introduced a ban on exporting sodium thiopental, and the European Union took an official stance in 2012 with its Regulation on Products used for Capital Punishment and Torture.

... forcing states to scramble for new cocktails

Death penalty states began looking for alternatives. Among them: procuring the drugs from alternative sources, devising a 1-drug method, employing other drugs such as midazolam or propofol, and using controversial compounding pharmacies to manufacture the drugs.

This has spurred a cascade of lawsuits

Such lawsuits saw a significant uptick in 2014. That's the same year numerous executions, all employing midazolam, were widely considered botched. In Ohio, Dennis McGuire gasped and convulsed for 10 minutes before dying. In Arizona, Joseph Wood snorted and gulped for air as he died over a period of 2 hours. And in Oklahoma, Clayton Lockett writhed for 43 minutes before succumbing to a heart attack.

After each of those cases, states issued holds on capital punishment while the processes were reviewed. Attorneys for death row inmates in several states have also used these botched efforts to challenge the constitutionality of their clients' executions.

Now, states are looking at alternatives ...

In 2014, Tennessee said that when lethal injection drugs can't be found, the state can use the electric chair. The next year, Utah successfully passed legislation to reintroduce firing squads.

14 other states have a secondary means -- Oklahoma actually has 3 -- but in those states, inmates must opt for them.

... which brings us back to Virginia

Virginia used electrocution exclusively until 1995, when the state began permitting death row inmates to choose between the chair and lethal injection. Since then, 7 condemned men have opted to die by electrocution.

But those were the exceptions. The majority of Virginia's 87 executions since 1995 -- as in the rest of the country -- were carried out via lethal injection.

Gov. Terry McAuliffe hasn't said whether he will sign the bill, and as of Wednesday, 3 members of his communications staff hadn't responded to CNN inquiries about whether he would.

But, with drugs becoming increasingly harder to come by, more states will have to tackle this challenge soon.

Source: CNN, March 24, 2016

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