The Death Penalty Needs Transparency & Regulation

Joe Nathan James Jr. probably isn’t a name you know, but it very well may be one that goes down in history. Last month, the Alabama inmate’s execution lasted three hours, being cited as the longest recorded lethal injection execution in American history.

This kind of botched execution is not a new phenomenon, and the lack of transparency surrounding inmate executions continues to foster the use of unregulated lethal chemicals, unqualified prison officials, and non-standardized policies across states.  By failing to establish regulated standards for the death penalty, we are perpetuating a cycle of arbitrary and discriminatory deaths that violates human rights.

Although the death penalty has existed in the United States since the earliest colonies, in the 1700s, Congress was already questioning the legality and humanity of these severe methods of punishment. As a result, the evolution of execution methods progressed to what is perceived to be more humane. Lethal injection has been broadly touted as the most humane method since 1977,  and since then, there have been 1,370 executions by lethal injection — now the primary execution method used by 30 states and the U.S. government.

Yet, despite its broad use, lethal injection is fraught with experimentation and unreliability, cited as the most frequently botched execution method. The results of botched lethal injections are so traumatic for inmates that some states have resorted to older methods of execution such as firing squads, lethal gas, and the electric chair. Others that continue to use lethal injection are on pace to execute one inmate per month for the next two years.

Although the federal and state governments have tackled the issue in their own way, it’s clear that not only do states need to regulate lethal injections further, but the Federal government should step in to make an official ruling about specific drugs and personnel needed to use lethal injection in order to limit the number of botched executions.  

The inconsistencies surrounding the federal rulings on the death penalty can be traced back to ever-changing interpretations of the Eighth Amendment. Interpreting the Eighth Amendment proves a challenge because of the general agreement among judiciaries of its legal definition that it must evolve with the standards of society. For this reason, the Court has used jury verdicts as a representative sample of American society’s acceptance of enforcing the death penalty.

The loose definition of “evolving standards of decency” alone causes inconsistent application of the methods of execution administered, and even calls into question the death penalty altogether. Yet, the Eighth Amendment’s loose definition continues to perpetuate chaos as politicians and social groups bend interpretation toward their goal to conceal the ineffectiveness and inhumane administration of lethal injection. Although the evolution of decency is imperative in moving away from outdated execution methods, it doesn’t necessarily mitigate against societal bias and prejudice.

In addition to the Eighth Amendment’s vagueness regarding execution methods, the FDA also fails to responsibly oversee the administration of lethal injections. For over 100 years, the FDA has monitored the public health of Americans through the regulation of multiple products. However, unlike other drugs, in 2019 the FDA announced that the drugs used for lethal injections would henceforth be unregulated by the federal government, making chemical executions even more susceptible to unpredictable outcomes. Although regulation of drugs violates the Hippocratic Oath and the purpose of the FDA, the Eighth Amendment cannot be legally enforced without responsible government oversight of the drugs being used.

Due to these ambiguities in death penalty legislation, the only transparent components of lethal injection are the drugs used. As of 2022, there are 16 medicines used for executions with the three-drug method being the most cited protocol. However, there are 26 states with secrecy protocols surrounding participants involved in the execution and/or sourcing of chemicals. Montana even includes a provision that “Facts pertaining to the selection and training of the executioner must remain confidential.” While executioners’ anonymity is important, this provision allows training to potentially fall by the wayside, creating more room for error.

As Americans continue to falter in their support of the death penalty, even infamous financially enterprising pharmaceutical companies refuse to provide drugs necessary for executions at the risk of incurring bad press and legal battles. This leaves states and the Federal government scrounging for sources of lethal drugs, sometimes killing inmates with chemicals obtained unethically or illegally.

At this point in history, we are operating outside the law to perform executions. The federal government should no longer be allowed to neglect its congressional responsibility in regulating lethal injections.

Finesse Moreno-Rivera is an expert in Criminal Justice Reform and research analysis. Finesse has worked with federal and state institutions such as the D.C. Metropolitan Police Department and the Federal Bureau of Investigation. Opinions are my own and not the views of my employer.