The Attorney General Just Called For A Freeze on Capital Punishment

February 18th 2015

Alex Mierjeski

Supreme Court

UPDATE: 2/18/15 - 2:42 EST: The United States Attorney General has called for a moratorium on the death penalty pending a U.S. Supreme Court decision on controversial lethal injection drugs brought by inmates in Oklahoma.

Attorney General Eric Holder admitted at a National Press Club luncheon in the Capitol on Tuesday that he was speaking from a personal standpoint when he said that the "inevitable" possibility of executing an innocent person was too great to continue using capital punishment. 

“Our system of justice is the best in the world. It is comprised of men and women who do the best they can, get it right more often than not, substantially more right than wrong,” said Holder. “There’s always the possibility that mistakes will be made … it’s for that reason that I am opposed to the death penalty.”

“I think fundamental questions about the death penalty need to be asked," Holder continued, "And among them, the Supreme Court’s determination as to whether or not lethal injection is consistent with our Constitution is one that ought to occur. From my perspective, I think a moratorium until the Supreme Court made that determination would be appropriate."

In January, the United States Supreme Court agreed to hear a case that could drastically change the capital punishment method known as lethal injection.

Filed by three death-row inmates, the case will challenge Oklahoma's controversial lethal injection program after a number of botched executions occurred after administering experimental drugs. It is the latest development in what has so far been a saga of missteps in the implementation of capital punishment stemming from the use of unregulated cocktails of deadly drugs in a number of states. Though the case will determine the constitutionality of Oklahoma's program, it has the potential to set strong national guidelines for the use of nontraditional drugs in lethal injections. 

“The time is right for the Court to take a careful look at this important issue, particularly given the bungled executions that have occurred since states started using these novel and experimental drug protocols,” the inmates’ attorney, Dale Biach, said in a statement.

The last time the Supreme Court heard anything on lethal injections was back in 2008, when justices ruled that the possibility of pain was an inherent risk in any execution method, rejecting opponents’ claims that a state was out of constitutional bounds if it failed to administer drugs in a way that ensured a painless and (relatively) humane procedure.

In the past, a painless procedure has been guaranteed by a combination of sodium thiopental for unconsciousness, pancuronium bromide to paralyze and stop breath, and potassium chloride to stop the heart. Since 2008, however, executioners have had difficulty obtaining sodium thiopental after US manufacturers stopped producing it and the European Union placed a ban on its export in protest of the death penalty. Shortages have led to a flourishing of unregulated pharmacies that spit out replacement drugs, but those replacements and their role in a recent spate of botched executions have come under fire in recent months. Midazolam, one popular replacement, was used in a number of high-profile cases, and its potential to leave a prisoner conscious as two other painful drugs are injected spurred inmates’ legal teams to seek the judgment of the nation's highest court. 

That the Court agreed to hear the case is not surprising: 2014, by many measures, was the worst year in the history of lethal injections. First, there was Michael Wilson in Oklahoma, who was able to famously utter, as the drugs coursed through his veins, “I feel my whole body burning.” A week after that, Dennis McGuire gasped through a 25-minute death in Ohio, and in July, Arizona chose to inject the very same drugs into Joseph Rudolph Wood III at 1:57 p.m.––he was pronounced dead an hour-and-52-minutes later.

But the most egregious botched execution happened in Oklahoma, after both Wilson and McGuire in Ohio presented strong cases for finding another method. After 51 minutes of trying to place an IV, executioners eventually pushed a catheter straight through a vein in Lockett’s groin, filling his tissue with the drugs instead of his bloodstream. Executioners closed the blinds and tried to call off the procedure as their patient grimaced and writhed on the gurney, but they were ultimately unsuccessful; Lockett eventually died of a heart attack. 

So in the first execution since Lockett’s disturbing death, Oklahoma injected Charles Warner with the same controversial drugs despite protests and an appeal by Warner to the Supreme Court earlier this month. (Warner was also one of the inmates who filed the case in the first place). According to an Associated Press reporter who was a witness to the execution, Warner displayed no physical signs of distress or pain, but did utter some troubling words after the first of the three drugs was administered. “My body is on fire,” he said.

The Court in 2008 was firm in maintaining that lethal injections were as suitable a way as any to dispose of the nation’s most heinous offenders. But considering that until then, the same drugs were used routinely in lethal injections, the Court would have been unlikely to rule in a direction that would inherently weigh the efficacy of the practice itself. But with the proliferation of drugs like mizadolan, and the troubling cases to which they are connected, a ruling that at least questions their safety seems likely. For those on death row, it’s the least they can hope for.

“The drugs and drug combination used in executions today vary tremendously across different jurisdictions,” Biach said. “This experimentation has led to the predictable, but tragic result of multiple botched executions. The Court’s guidance on the practices currently employed in lethal injection is urgently needed.”