A New Debate on the Death Penalty

By Robert C. Jones Jr.

A New Debate on the Death Penalty

By Robert C. Jones Jr.
The use of fentanyl in a Nebraska execution and the Catholic Church’s recent stand on capital punishment has stirred the debate over the way states execute the condemned.

Nebraska authorities used fentanyl to help execute a convicted murderer on August 14.

Carey Dean Moore, a 60-year-old inmate who was sentenced to death for killing two Omaha cab drivers in 1979, was pronounced dead at 10:47 a.m. at the Nebraska State Penitentiary in what was the nation’s first execution carried out with the powerful opioid that is at the center of the U.S. overdose epidemic. 

What impact will the use of the drug in Moore’s execution have on lethal-injection drug protocols in other death penalty states, and what are some of the challenges facing judges now that pharmaceutical companies are bringing legal action to prevent their products from being used to carry out executions? 

Scott SundbyScott Sundby, professor and Dean’s Distinguished Scholar at the University of Miami’s School of Law who teaches criminal law and procedure and is author of A Life and Death Decision: A Jury Weighs the Death Penalty, offers insights on the issue in five questions with UM News

Nebraska became the first state to use fentanyl in an execution. Does Nebraska’s use of this powerful opioid point to the state’s desperation to find drugs now that pharmaceutical companies are blocking the use of their products to carry out executions? 

Sundby: Nebraska’s use of fentanyl is only the latest in the rather startling spectacle of states scrambling to find drugs that they can use for lethal injection. Pharmaceutical companies understandably do not want their drugs associated with executions (probably very few patients come in and say, “hey, Doc, can I have a prescription for that drug that states are using to put people to death”) and, therefore, have refused to sell or allow their drugs to be used in executions. As a result, some states have essentially turned their employees into ‘drug mules,’ sending them across the state’s border with cash to buy execution drugs from compound pharmacies that do not want to be identified.. The fact that no one wants to be identified with supplying the means for executing people and that states are retreating into secrecy as to how they obtain and administer execution drugs is one of a number of signs that American society is becoming less and less supportive of capital punishment. 

Will the drug’s use by Nebraska open up a new avenue for states that are struggling to find execution drugs? 

Sundby: One strongly suspects that Nebraska’s experience will simply go down as the latest episode in what will be a continuing saga of states’ efforts to answer the question: Is there a humane way to put a person to death against their will? The states are in this quandary because prior methods of execution – hanging, firing squad, gas chamber, electric chair – were on the verge of being found to violate the 8th Amendment ban on cruel and unusual punishment, so they turned to lethal injection as the alternative. Consequently, there is no viable ‘Plan B’ if states cannot find lethal injection drugs, which means that, like Nebraska, they will continue to scramble to find drugs that they can obtain and administer. Indeed, Nebraska may not be able to obtain fentanyl in the future since the makers of fentanyl are now trying to block the drug’s use in future executions, which would put Nebraska back in the mad melee to find execution drugs.

Drug companies are in a legal battle to prevent their products from being used in executions, effectively putting a stop to executions in some cases. This seems to be new ground for judges who have to rule in these cases. Could this spawn new legislation in some states? 

Sundby: The drug companies have been resolute in their efforts to stop the use of their products for lethal injection by building into contracts prohibitions on the use of their drugs for executions. And we are talking about corporate giants like Pfizer and Johnson & Johnson that have plenty of resources and lawyers to pursue those who violate the contracts. The drug companies’ actions when considered in tandem with challenges by death row inmates produces a double pincer effect: drug companies bring civil suits to keep states from using their drugs, this forces states to seek out new drugs with unknown effects, which in turn makes the new protocols vulnerable to constitutional challenge on the grounds that states are essentially experimenting with these drugs on the condemned inmates and causing unnecessary suffering.

The net effect of this parallel line of legal challenges is an ever-shrinking availability of execution drugs, which is why some states are passing laws that try to shroud in secrecy how they are obtaining drugs, who is administering them, and the effects once administered. These secrecy laws are constitutionally vulnerable since they are not-so-subtle attempts to hide botched executions and to deprive defendants of information that they could use to challenge the execution protocol as being “cruel and unusual.” 

Pope Francis recently declared the death penalty wrong in all cases. How will this new teaching potentially affect U.S. judges who are practicing Catholics? For example, should Catholic judges recuse themselves in death penalty cases that conflict with their religious beliefs? 

Sundby: Judges occasionally must rule in a way with which they personally disagree and that is accepted as part of their duty as judges to follow the law. A judge’s religious or moral beliefs, therefore, are not grounds for recusal unless the beliefs would prevent them from following the law or would give rise to “a serious risk of actual bias” (usually based on a personal involvement in the case, such as having received $3 million as a campaign contribution from one of the litigants or having been involved in the case earlier as a lawyer for one of the litigants; both of these examples are cases where the Supreme Court said recusal was constitutionally necessary).

Whether judges are in reality able to fully put aside their views and follow the law is, not surprisingly, a hot topic of empirical debate, but the law’s general presumption is that they are able to do so and will disqualify themselves if they realize that they cannot. Consequently, just because a judge is a practicing Catholic (or the member of any other church or group that opposes the death penalty) would not be grounds for recusal. The situation is somewhat analogous to when then-Governor Tim Kaine carried out eleven executions in Virginia even though he personally was vehemently opposed to the death penalty.

With Pope Francis changing the Catholic Church’s stance on the death penalty, what’s the likelihood that such developments can potentially impact a jury’s decision to impose a death penalty sentence? 

Sundby: The short answer is that the Pope’s position in theory should not affect a capital jury’s decision because a citizen who would never impose capital punishment due to their religious or moral beliefs could not serve on a capital jury in the first place. The rationale is that a juror (just like a judge) must be able to ‘follow the law,’ and if an individual would never impose the death penalty, they cannot follow the law of a state that says it is an appropriate penalty (in the same way that someone who says that he or she believes the Second Amendment makes any law banning firearm possession invalid could not serve on a jury in a case where the defendant is accused of violating firearm laws). So if a potential juror were to say, “I am a Catholic and given Pope Francis’s teaching I could never impose the death penalty,” he or she could not be on the jury.

The longer answer, though, is that the Catholic Church’s opposition becomes one more influential voice against the death penalty and will likely add to the trend we are already seeing that even individuals who are not always opposed to the death penalty (and thus could be capital jurors) are more and more hesitant to impose a death sentence in the jury room and more inclined to show mercy; nationwide, juries imposed only 39 death sentences all of last year.