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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Drug company's withdrawal limits death penalty options in Alabama

Drug giant Pfizer's decision to ban the use of its products in executions won't necessarily stop capital punishment in Alabama, one expert says, but it's clear the state's lethal injection options are running out.

"The sources of drugs on the open market are gone," said Robert Dunham, director of the Death Penalty Information Center, a group that studies the death penalty. "States are going to have to go underground, as it were, to obtain the drugs for executions."

Pfizer, the New-York based pharmaceutical company, announced Friday that it "strongly objects to the use of its products as lethal injections for capital punishment" statement on the company's website.

One of the world's largest drug producers, Pfizer joins several other major drug producers in a boycott that has been slowing the pace of executions in America for years. European-owned companies have backed out due to widespread opposition to the death penalty in their home countries. In America, major medical and pharmacists' associations have declared their opposition to participation in executions, arguing that the medical arts shouldn't be used to kill.

Death penalty critics hailed Pfizer's decision last week as a major step toward cutting off all execution drugs. Pfizer spokeswoman Rachel Hooper said Monday that the company simply clarified an existing policy, 1 the company has held since it acquired Hospira, 1 of the first major American drug producers to halt sales of drugs for lethal injection.

"It's not a new policy so much as an update of a Hospira policy," Hooper said.

Hooper declined to answer questions about whether the company had sold drugs to Alabama's prison system.

Alabama has executed only 2 inmates in the past 4 years, compared to 17 in the 4 years before that.

The drug boycott was a major factor in that lull. Federal regulators seized the state's execution drugs, acquired through back channels, in 2011. Alabama switched to a new main execution drug, but its supply of that drug expired in 2014 while lawyers debated the legality of the switch.

In January, the state executed convicted murderer Christopher Brooks with injections of midazolam, rocuronium and sodium chloride. State officials have never acknowledged where they bought the drugs. One maker of midazolam, the Illinois-based company Akorn, joined the boycott after Alabama officials mentioned the company in court filings in a death penalty case.

Dunham said the Pfizer decision does close off access to mass-produced versions of the drugs typically used in executions. He said states could still turn to compounding pharmacies - specialty pharmacies that make small, customized batches of drugs - though many compounding pharmacists would likely refuse if state officials can't produce a prescription for the drugs.

Alabama seems to have had trouble with that approach. In court records filed in December, state officials said they asked every compounding pharmacist in the state to make pentobarbital - once the state's primary execution drug - and every pharmacist turned them down.

Attempts to reach Department of Corrections officials Monday for comment on the Pfizer decision were unsuccessful.

It's not clear just how much midazolam the state has on hand for future executions, where those drugs come from, or how long they'll last.

Court documents filed earlier this month again included instructions for the use of midazolam made by Akorn, which has asked that its drugs not be used for lethal injection. The court filings include photocopies of labels from boxes of midazolam.

The expiration dates on those labels weren't visible.

Source: Anniston Star, May 17, 2016

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