Human Rights and U.S. Executions

Methods of Execution and International Law

The United States is a party to two international treaties – the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – that include restrictions on how executions may be carried out. In addition, in 1984 the UN Economic and Social Council established the Safeguards guaranteeing protection of the rights of those facing the death penalty, which states: “Where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering.” The United Nations Human Rights Committee has noted that compliance with the ICCPR includes carrying out executions in a manner to “cause the least possible physical and mental suffering.” The Committee applied that standard in Chitat Ng v. Canada (1991), which challenged the extradition of Charles Chitat Ng to the United States. If Ng was extradited, he might have been executed with lethal gas, and that was deemed cruel and inhuman treatment.

Although the United States Supreme Court has never ruled a method of execution unconstitutional, various state courts have identified certain methods of executions as a violation of state prohibitions against cruel and/or unusual punishment. For example, the supreme courts of Georgia (2001) and Nebraska (2008) have ruled that the use of the electric chair violates their state constitutional prohibitions against cruel and unusual punishment. Most recently, a South Carolina trial court held both the firing squad and electrocution to be unconstitutional methods of execution under state law in September 2022. That ruling is under review by the South Carolina Supreme Court.

In 2022, the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dr. Alice Jill Edwards (pictured, left), and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Mr. Morris Tidball-Binz (pictured, right), released a statement identifying “abolition of the death penalty” as “the only viable path” for countries committed to respecting the human rights of the convicted. These UN officials further indicated that increasingly, “methods of execution have been found to be incompatible with the obligations to refrain from torture and ill-treatment, for inflicting severe pain and suffering.”

Issues with Lethal Injection and the International Response

Lethal injection as a method of execution was introduced in the United States by Oklahoma in 1977 and has been used in over 1,380 executions, nearly 90% of the total carried out since 1976. Some medical professionals have objected to participating in lethal injections because it contradicted their Hippocratic Oath. There are 14 national professional organizations—including the American Medical Association, American Nurses Association, and the American Correctional Health Services Association—and 16 state-level professional organizations that prohibit members from participating in any aspect of executions. As a result of these restrictions on healthcare professionals, correctional officers have been tasked with carrying out executions, and problems have ensued. For instance, in 2022, 7 out of 20 execution attempts were identified as problematic by the Death Penalty Information Center and other experts. In the same year, three states – Tennessee, Alabama, and Arizona – suspended executions to investigate problems in their protocols.

Jurisdictions have used a variety of protocols for lethal injections, typically employing one, two, or three drugs. The one and two-drug protocols typically use an overdose of an anesthetic or sedative to cause death. Most three-drug protocols use an anesthetic or sedative, followed by a paralyzing agent, and finally a toxic agent to stop the heart. The paralytic agent has often been referred to as a “chemical veil;” for instance, the Executive Director of the ACLU of Tennessee, Hedy Weinberg, stated in a 2005 press release that “Our concern is that the injected chemical, Pavulon, acts as a ‘chemical veil,’ to prevent those witnessing the execution from knowing whether the condemned inmate is suffering excruciating pain. The use of Pavulon interferes with the public’s right to know and could conceal cruel or unusual punishment by the state, which is forbidden by the Constitution.” Midazolam has been linked to botched executions in Oklahoma (e.g. Clayton Lockett), Alabama (e.g. Ronald Smith), Arkansas (e.g. Kenneth Williams), Ohio (e.g. Dennis McGuire), and Arizona (e.g. Joseph Wood) where prolonged death, convulsing, heaving, and jerking were experienced by the prisoner.

After the botched executions of Lockett and McGuire in 2014, the spokesperson for the UN Office of the High Commissioner for Human Rights, Rupert Colville, stated that such suffering during the execution may be in violation of the 8^th Amendment to the U.S. Constitution. He added, “The apparent cruelty involved in these recent executions simply reinforces the argument that authorities across the United States should impose an immediate moratorium on the use of the death penalty and work for abolition of this cruel and inhuman practice.”

The following year the U.S. Supreme Court ruled 5-4 in Glossip v. Gross (2015) that the Oklahoma prisoners “failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment.” Justice Sonia Sotomayor’s dissent referenced Lockett’s prolonged death and she concluded: “The Court’s determination that the use of midazolam poses no objectively intolerable risk of severe pain is factually wrong.” Despite this ruling, many states have since abandoned the use of midazolam in their execution protocols.

Worldwide, pharmaceutical companies have taken actions to ensure that their products are not used in lethal injections. In 2001, a statement from Abbott Laboratories read: “Abbott does not support the use of Pentothal in capital punishment. In fact, [we] communicated with departments of corrections in the United States to request that this product not be used in capital punishment procedures.” In 2017, Johnson & Johnson statedthat their pharmaceutical company, Janssen “discovers and develops medical innovations to save and enhance lives. We do not support the use of our medicines for indications that have not been approved by regulatory authorities, such as the US FDA. We do not condone the use of our medicines in lethal injections for capital punishment.” According to the Lethal Injection Information Center of the international non-profit Reprieve, over 60 global healthcare companies worldwide have taken some form of action to ensure their products are not used in executions.

International action among U.S. allies has also been taken to prevent private foreign companies from participating in these protocols. Following the United Kingdom’s ban, the European Union, for example, established an emergency amendment in 2011 and then amended its “Tools of Torture” regulation in 2016 to prohibit exporting European products for use in torture or capital punishment. Specifically, they added “drug injection systems designed for the purpose of execution of human beings by the administration of a lethal chemical substance” to the existing list consisting of gas chambers, electric chair, gallows, and guillotines.

Due to the widespread international response, both in the private and public sector, U.S. states have experienced increased difficulty in obtaining the necessary drugs to use in executions. Many states have suspended executions citing difficulties in obtaining the necessary chemicals. Ohio’s Governor has repeatedly issued reprieves, including three in 2020 for executions scheduled from 2021 to 2023, and cited “ongoing problems involving the willingness of pharmaceutical suppliers to provide drugs.” Other states have turned to compounding pharmacies, which have less government oversight, for their execution drugs. Texas has moved forward with executions utilizing drugs obtained from compounding pharmacies, although questions have arisen about whether these drugs may have been outdated or impure. Dr. David Waisel, an anesthesiologist and Harvard Medical School professor, wrote in a 2016 affidavit: “Improper compounding and testing procedures may leave fine particles undetectable by the naked eye in the solution, or larger particles that would not be detected by an untrained eye. These particles can cause great irritation to the vein, resulting in extraordinary pain.” More recently, some states are seeking to reintroduce previously abandoned methods of executions, such as the firing squad, the gas chamber and electrocution as a way of restarting stalled executions. For example in March 2023, Idaho’s Governor Brad Little signed a law authorizing the firing squad as a method of execution if lethal injection drugs cannot be obtained.

Secrecy Laws

Twenty-six states have some level of secrecy regarding executions, including anonymity for those carrying out executions or those supplying the drugs. DPIC’s 2018 report on secrecy noted that as pharmaceutical companies and the international community made it more difficult for states to obtain lethal injections drugs, there has been increased implementation of secrecy laws. The report stated: “Of the seventeen states that have carried out 246 lethal-injection executions between January 1, 2011 and August 31, 2018, all withheld at least some information about the about the execution process. All but one withheld information about the source of their execution drugs. Fourteen states prevented witnesses from seeing at least some part of the execution. Fifteen prevented witnesses from hearing what was happening inside the execution chamber. None of the seventeen allowed witnesses to know when each of the drugs was administered.”

At the same time, there has been an increase in the number of problematic or botched executions. For example, the report noted: “In 2017, more than 60% of the executions carried out with midazolam produced eyewitness reports of an execution gone amiss, with problems ranging from labored breathing to gasping, heaving, writhing, and clenched fists. In several of these cases, state officials denied that the execution was problematic, asserting that all had proceeded according to protocol.”

The UN Human Rights Office hosted a panel discussion, titled “Death Penalty and Transparency – What’s to Hide?”, in 2017. During this event, Amnesty International’s Senior Director for Law and Policy, Tawanda Mutasah, explained that “Transparency around executions is the only way that we can prevent the cruel and inhumane treatment that already is built into the idea of the death penalty itself. It is not possible to meet the standards of international law without transparency. So not only would it help, but it is central and critical.”

In its 2022 report, Reprieve’s Lethal Injection Information Center identified 17 states and the federal government as high-risk places for companies concerned about execution secrecy laws. According to the report, these laws create fiscal, reputational, and legal risks for these global healthcare companies, respectively demonstrated in the past by the divestment of shareholders, the association of problematic executions with drugs intended to help not harm, and lawsuits holding the manufacturers liable for the misuse of their products. Therefore, it’s in the best interest of these companies to invest in states that not only uphold corporate contracts, but also respect international human rights norms and standards.

Conclusion

Numerous recent executions in the U.S., regardless of the method used, have likely been in violation of international human rights standards against torture and cruel or inhuman punishment. As a result, there has been widespread international condemnation in both the private and public sector, making it difficult for many states to carry out executions. States have responded in various ways by suspending executions, utilizing alternative and outdated methods, or circumventing the bans by obtaining drugs from questionable sources. Executions have become increasingly problematic, both in the eyes of the American public and the international human rights community.

Support for this project was provided by the Foreign Office of the Federal Republic of Germany.

Resources

DPIC Report, Behind the Curtain: Secrecy and the Death Penalty in the United States

DPIC Methods of Execution Page

DPIC Lethal Injection Page

DPIC Lethal Injection Protocols

DPIC Botched Executions

DPIC Execution Database

DPIC Podcast on Secrecy and the U.S. Death Penalty

DPIC Webinar: Secrecy, Execution Methods, & the International Response

DPIC Human Rights Webinar Series

Reprieve’s Lethal Injection Information Center

UN experts warn of associated torture and cruel punishment

UN rights office calls on US to impose death penalty moratorium after botched execution

United Nations: Safeguards guaranteeing protection of the rights of those facing the death penalty

Reprieve’s Lethal Injection Information Center—Respecting Corporate Contracts: State-by-State Risk Index

United Nations: Death penalty and transparency – what’s to hide?

European Union “Tools of Torture” 2016 amendment

The Death Penalty and the Absolute Prohibition of Torture and Cruel, Inhuman, and Degrading Treatment or Punishment by Juan Méndez

Amnesty International “Lethal Injection: The medical technology of execution”

Human Rights Watch Lethal Injection in the U.S.