Lethal injection without lethal injection drugs?

Factual Questions
1

I know this is a controversial issue, but I’m looking for an objective answer. According to this CNN article, an inmate in South Carolina is scheduled to be executed in less than 2 weeks. The state, however, does not have the lethal injection drugs and hasn’t had them since 2013. SC law says that if the inmate does not choose between lethal injection and electrocution, the execution will be done by lethal injection. The inmate has not made yet made a selection.

The state has not said how it plans to carry out the execution. Though the inmate’s attorney has filed a stay of execution with the SCSC, the state is preparing to execute the inmate on December 4th, as scheduled. It’s not saying how.

I’ve long understood lethal injection involves three specific chemicals: pancuronium bromide, sodium pentathol, and potassium chloride. Are there other combinations of drugs that could legally be used, and if so, why haven’t they been used already by states that have the death penalty?

2

There are many drugs that can cause death, but no reputable medical professional will prescribe or administer them, and no pharmaceutical company will supply them for that use.

Example article:

Similar considerations apply to all drugs.

3

Here’s a bit from a recent execution:

"Hall’s case reached the Supreme Court after a flurry of litigation in the lower courts over the execution, which the government had scheduled for Thursday at 6 p.m. On Thursday afternoon, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia issued an injunction blocking the execution. The injunction was based on an earlier finding from Chutkan that the government’s method of execution violates the Federal Food, Drug, and Cosmetic Act because the government uses a lethal dose of sodium pentobarbital without obtaining a prescription for that drug."

From here:

4

Here in NC they stopped the DP because no Dr. would participate. They could lose their medical license for helping the state give the DP

5

Another cause for shortages is that countries which do not have the death penalty have banned the export of drugs for the purpose of the death penalty. For example, no drug company in the EU can sell its drugs to a country, for the purpose of executions.

Since many of the drugs that could be used for lethal injections have valuable therapeutic roles (eg anaesthesia and sedation), if a state started using them for the death penalty, that would run the risk of the US being cut off from those drugs entirely, which could have a serious effect on surgeries and other procedures that need anaesthesia or sedation.

Nor can states use drugs intended for veterinary purposes that might not be caught by those export restrictions, because FDA rules require that any drug used on a human has to be approved for human use - even when that use is to kill them. So, « why can’t we put them to sleep like Fido? » isn’t an option.

6

Just working within the terms of the OP. And admittedly this is kinda marginal for GQ.

SC law may lay out the specific drugs to be used. If so, the state is stuck, but has been stuck for some time for all the reasons outlined above.

If not then IMO the state would be free to use whatever they want. You could (eventually) kill someone by infusing them with a fully saturated solution of distilled water and table salt. Or a lot of almost any other noxious chemical.

To be sure the state might be subject to widespread condemnation for using pine-sol or bleach on the poor inmate. And somebody somewhere might try to get an injunction against this plan. But if they a) keep the details a secret and b) can find somebody to do the deed, they may well succeed in their goal of killing the inmate and be left to deal with the legal fallout later.

Heck, if the law says “inmate’s choice, and absent that it’ll be lethal injection”, then what happens if the inmate does choose lethal injection, knowing the state doesn’t have and can’t get the drugs?

I could imagine a court, if asked, saying that although the law says the choice exists, when neither the inmate nor the state can implement choice A, it would be legal error contrary to legislative intent that the execution is thereby forestalled forever. As such, choice B is what the law demands.

Finally, there is nothing to prevent the legislature from amending the execution statute in light of changed circumstances ref the current practical impossibility of lethal injection. And once having altered the law, perhaps to require electrocution in all cases or to add the option(s) of hanging, firing squad, etc., the state could ahead and apply the amended law to the inmate.

IMO because this legislation would not be altering the crime of which convicted, not the terms of sentence, which is “death”, making these changes would not be deemed ex post facto.

YMMV. A messy business for sure with contradictions galore at its core.

7

Here’s a WaPost article about the fights between FDA, Department of Justice and Texas, on the issue of using and obtaining drugs for execution. I’m afraid it’s pay-walled.

Short version is that there is a 2012 injunction which bars the FDA from allowing the import of sodium thiopental, so they wouldn’t allow Texas to import the drug. However, AG Sessions argued that drugs for death penalty purposes are not within the FDA’s mandate, which a DOJ opinion in 2019 confirmed. The article (from 2019) says that litigation was likely over that opinion.

The US manufacturer of sodium thiopental, Hospira, stopped making it, because it was used for the death penalty, according to the article.

8

And another article about drug companies using litigation to try to prevent states from using their drugs for executions. Doesn’t sound like they’ve had much success, but it shows the dynamic in play, and why states may be having trouble getting drugs for executions.

9

Thank you for the replies. LSLGuy’s response inspired me to look at the actual statute, which does not, in fact, specify which chemicals are used in lethal injection. His post does, in fact, point to a likely answer. SC law also states that if lethal injection is deemed unconstitutional, execution will be by electrocution. The inmate’s attorney is arguing [see linked article in OP] to the SCSC that the state is operating under a cloud of secrecy. Whether that secrecy is due to the state’s plans to use chemicals that would violate the Eight Amendment or because it’s planning on using electrocution because those chemicals would be unconstitutional remains to be seen.

For those interested, the article linked in the OP discusses shield laws, which are in effect in 14 states and which protect the identity of U.S. drug manufacturers who supply lethal injection chemicals, thereby shielding them from “death penalty activists.” That’s not for GQ discussion; I mention it only as a side note.