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.