Capital Punishment: We Should Aim For Progress Where We Can Get It

By Eric Wilkins.

Arizona officials recently announced that they have acquired a supply of pentobarbital, a difficult-to-obtain lethal injection drug. Plans to resume executions will end the current period of nearly seven years without state-administered capital punishment. The ending of this long hiatus has, once again, brought to the public attention unsettled questions of ethics, legality, and policy surrounding the controversial practice.

Modern Capital Punishment in Arizona and the U.S.

One thing is undisputed: Arizona’s reputation with capital punishment is tarnished at best. In July 2014, Arizona received national attention as death row inmate Joseph Wood somehow received a chemical dose that was fifteen times greater than the designated lethal dose—and then died slowly as he gasped and choked for air for almost two hours. Under normal circumstances, the execution was expected to take no more than ten minutes.

This event began the present abeyance in executions. Immediately following Joseph Wood’s death, a federal judge issued a stay on executions in Arizona, spurring law enforcement to seek a different drug. This proved difficult as European manufacturers refused to sell any drugs that were to be used for capital punishment. In 2015, Arizona officials attempted to import a different lethal injection drug from an unidentified source, but the FDA confiscated the shipment and resisted the state’s legal opposition to the seizure.

The tide began to turn as the federal stance on capital punishment became more favorable under the Trump administration. In 2019, the Office of Legal Counsel issued an opinion discrediting FDA authority to regulate lethal injection drugs. The opinion based this statement on two grounds. First, the opinion cited back to the 1938 Food, Drug, and Cosmetic Act, arguing that the Act was never intended to cover execution drugs. Second, appealing to the principles of federalism, the opinion suggested that the regulation would unjustifiably preempt the states’ ability to lawfully carry out capital punishment. As the opinion noted, “[i]nterpreting the FDCA to bar the importation, sale, and distribution of articles intended for use in executions” would conflict with the understanding that “capital punishment will remain available and that the federal government will defer to States over methods of execution.” Without the FDA’s interference, state execution numbers are likely to rise, and Arizona’s recent procurement of pentobarbital is certainly unsurprising.

This shift in policy aligns with federal capital punishment statistics of recent years. Indeed, in the final six months of the Trump administration, a total of thirteen federal convicts were put to death. As Justice Sotomayor grimly noted, this follows a period of “seventeen years without a single federal execution . . . .  To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.”

Of course, this roller coaster ride of changing policy and competing administrations is nothing new. And with such an emotionally-charged issue, it is hardly surprising to see vigorous appeals from proponents of both sides resurface time and time again. However, let us set aside, for a moment, the difficult question of whether capital punishment ought to be legal and focus on a point of near-universal agreement.

If capital punishment occurs, it ought to be done as humanely as possible.

At a glance, this seems a simple enough goal. After all, countless animals are put down annually using drugs that allow the transition to go as smoothly and harmlessly as possible. Or, to circumvent the very concept of chemical injection, the application of inert gases (such as nitrogen) would be a pain-free and cost-effective method of execution. So why do we still have cases such as Joseph Wood?

Political Marketing and Blame Culture Are the Problem

I posit that the answer is simple: no one wants to take the fall for the inevitable backlash. Humans have a tendency to focus on the negative attributes of others and quickly forget the positive. This tendency is called the negativity bias. This, in part, may explain why presidential approval ratings tend to fall over the course of presidents’ terms. This phenomenon has been amplified by the recent polarization of society through social media. When everyone is angry and there is much more social pressure to criticize than offer support for an idea, it is unsurprising that no policymaker would choose to champion as divisive an issue as capital punishment—for either side. This, incidentally, may explain why President Biden has heretofore failed to commute the sentences of federal death row inmates.

This “hands-off” approach by politicians leaves the special interest groups no option but to fight a war by proxy. Rather than making an appeal to the public about the social harm of capital punishment and abolishing it legislatively, an enterprising lobbyist might just persuade the FDA to seize the lethal injection drugs and thereby accomplish his goal. Further, as the threat of being “cancelled” by public opinion looms, chemical manufacturers are incentivized to stay away from production of the drugs. Meanwhile, proponents of capital punishment are just as guilty; the Federal Bureau of Prisons systematically omitted details from accounts of their executions to remove evidence of pain or distress experienced by the convicts.

This hidden struggle is troubling on two counts. It is worrisome enough that decisions made “behind closed doors” are shaping the future of criminal justice in America. But worse still, these administrative maneuvers have themselves become the cause of harm by inhibiting the ability of the Justice Department to administer the death penalty in a humane way. It is no coincidence that the Wood incident arose after the FDA banned a successful lethal injection drug, leading officials to try a new catastrophic chemical cocktail.

The Next Step

Solving this problem will be difficult and must proceed in two steps. First, we need to recognize and appreciate political actors for taking decisive and clear measures, even if we disagree with them ideologically. The recent outpouring of negativity and blame has socially selected—in the Darwinian, “survival of the fittest” sense—against political transparency, and the only solution to this is to consciously (and vocally) support honest policymakers.

Second, we need to be willing to engage in a dialogue that emphasizes coming to a solution and prioritizing our common ground. Taking steps to ensure that capital punishment is applied predictably, humanely, and at a low cost is something we can all support; we can have the respectful discussion of whether we support the practice of capital punishment after this is assured.

"Injectable drugs in bottle and ampoules and syringe" by wuestenigel is licensed under CC BY 2.0

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By Eric Wilkins

J.D. Candidate, 2022

Eric Wilkins is a 2L Staff Writer and the Social Media chair for the Arizona State Law Journal. Before starting law school, he spent five years working as an educator, teaching science and sharing his love of space with junior high school students. In his spare time, Eric loves to read and write works of fantasy, discuss philosophical minutiae, and express his competitive side through fencing and board gaming.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.