Jurisprudence

Death Penalty States Won’t Turn Over Scarce COVID-19 Drugs

A protester in front of the Supreme Court wears a shirt that says "No More Killing!"
Abraham Bonowitz of Columbus, Ohio, joins fellow members of the Abolitionist Action Committee during an annual protest and hunger strike against the death penalty outside the U.S. Supreme Court in D.C. on July 1. Chip Somodevilla/Getty Images

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As the COVID-19 pandemic has spread around the world, hospitals across this country and in many other nations have reported serious shortages of sedatives, painkillers, and paralytics needed to treat coronavirus patients. Many states have supplies of these drugs that could be used to alleviate those shortages and treat seriously ill and dying patients. These states, though, have decided shortsightedly and dangerously to maintain these stockpiles for their intended purpose: executions.

Lethal injection drugs—like fentanyl, midazolam, vecuronium bromide, and rocuronium bromide—are urgently needed to help save people seriously ill with COVID-19. And death penalty states with stockpiles of those drugs now have a choice to make: Is it more important to guard those supplies so that in the future they can be used to execute convicted murderers, or should they release them to help save innocent lives? So far, they are choosing to let innocent people fighting the illness today suffer.

Why are execution drugs useful as medication in this pandemic? The most seriously ill need to go on ventilators that require those patients to be kept on sedatives and painkillers. Hospitals use midazolam and fentanyl to sedate those patients and use vercuronium bromide and rocuronium bromide in ventilation and intubation.

So severe is the current emergency drug shortage that earlier this month the Drug Enforcement Administration, which regulates the production and supply of controlled substances, loosened production restrictions and approved more imports of the narcotic medications necessary for patients on ventilators.

Earlier this month, seven leading anesthesiologists, pharmacists, and medical academics took the unusual step of writing an open letter to the corrections departments of all 28 death penalty states asking them to give health care facilities needed medications. They said that drugs currently stockpiled for lethal injection “could be used to save the lives of potentially hundreds of patients suffering from COVID-19 and potentially thousands of patients in other ICU settings.”

Recently enacted laws allowing states to keep secret their death penalty procedures prevent us from knowing how many and which states actually have such stockpiles. However, we do know that 19 death penalty states have execution protocols calling for the use of sedatives and paralytics.

Only three states—Florida, Nevada, and Tennessee—have disclosed that they possess large stockpiles of sedatives and paralytics for executions. And, according to one report, Florida alone has a quantity of rocuronium bromide large enough to intubate “about 100 COVID-19 patients.”

The health care professionals’ appeal has come at a moment of growing doubts about the death penalty’s fairness and reliability, yet citizens of many states still support it and officials in those places are willing, if not eager, to use it.

The coronavirus is also complicating the administration of capital punishment. Death row inmates are contracting the disease and being moved to hospitals outside prisons. In addition, even the Texas Court of Criminal Appeals, long noted for being unsympathetic to death penalty appeals, has stayed three executions citing “the current health crisis and the enormous resources needed to address that emergency.”

Since the middle of March, executions planned in Texas, Tennessee, and Ohio have been put on hold. Those scheduled for May and June, and perhaps longer, are likely to be halted as well.

Yet so far no death penalty state has said it will repurpose lethal injection drugs. They seem reluctant to do so because for many years those drugs have been hard to obtain. Drug shortages often have stopped executions from going forward. As a result, some states turned to nefarious suppliers to obtain lethal drugs, while others brought back previously abandoned methods of execution like the electric chair and the firing squad.

Death penalty supporters now confront a grim irony. The very case that they make as to why the United States still needs capital punishment should make it hard for them to resist calls to relinquish lethal injection drugs.

Many proponents of capital punishment say they favor it precisely because of their commitment to the sanctity of life. As the philosopher and death penalty supporter Ernest van den Haag put it, the sanctity of life is “best safeguarded by executing murderers who had not respected it.”* And despite evidence to the contrary, supporters still claim that because the death penalty deters murders, “capital punishment does, in fact, save lives.”

Some even have chided the Roman Catholic Church for opposing the death penalty in the name of a “culture of life.” Justice Antonin Scalia, himself a devoted Catholic, strongly disagreed with the church’s view “ ‘that the death penalty can only be imposed to protect rather than avenge’ and therefore is almost always wrong.” Scalia observed that “for the believing Christian, death is no big deal.”

Others argue that capital punishment, in fact, makes valuable contributions to a culture that respects life. As Ann Widdecombe, a former member of the British Parliament, put it, “To ignore the deterrent effect is to condemn innocent people to death and a state that does that is morally responsible for those deaths. Is that really what the pope is advocating?”

If those who embrace capital punishment indeed value life, they should join medical professionals now urging states to quickly provide drugs that hospitals need to treat COVID-19 patients even if it impedes the states’ ability to carry out executions in the future. By Widdecombe’s logic, if they fail to do so, they will bear some responsibility for deaths that otherwise could have been prevented.

The authors of the open letter got it right when they wrote, “At this crucial moment for our country, we must prioritize the needs and lives of patients above ending the lives of prisoners.”

Correction, April 20, 2020: This piece originally misspelled Ernest van den Haag’s first and last names.