Drug Challenges Are Failing to Halt Executions

The execution of two inmates late Tuesday night after multiple attempts to halt their lethal injections reveals at least one thing: challenging the constitutionality of executions on the grounds that the origin of the drugs is unknown is failing to gain traction.

Georgia executed Marcus Wellons, convicted of the 1989 rape and murder of a 15-year-old girl, on Tuesday using the sedative pentobarbital. About an hour later, Missouri used the same drug to execute John Winfield, convicted in the 1996 murder of two women. Both states have refused to reveal where they obtained the drug, but it’s likely they received it from compounding pharmacies, which are not subject to the same regulations as drug manufacturers. The executions, which appeared to go as planned, were the first following the botched lethal injection of Clayton Lockett in Ohio in April. Since then, nine executions have been stayed or postponed.

In the last few weeks, lawyers for Wellons and Winfield have tried to stop their lethal injections in part by arguing that the secret origins of the drugs being used risked violating the Eighth Amendment’s ban on cruel and unusual punishment. Lawyers argue that drugs manufactured by compounding pharmacies behind closed doors and with little oversight risk contamination, which could lead to a prolonged or painful death. Inmates around the country are challenging their pending executions based largely on the drugs’ hidden origins and are more often than not running into courts that are unreceptive.

Southern Methodist University law professor Meghan Ryan says many courts are generally skeptical of attempts to halt executions and hesitant to rule on an issue where there’s little precedent from the Supreme Court.

“The arguments being made don’t really track with Supreme Court precedent very well, and a lot of courts are unwilling to make that jump,” Ryan says. “It’s forging into a new area.”

The Supreme Court ruled lethal injection constitutional in 2008, but drug protocols have changed in most states since then. Many pharmaceutical companies have banned sales of drugs to states for executions, forcing prisons to look elsewhere.

Still, Ryan adds that death row inmates have nothing to lose by challenging their executions.

“Maybe they have very good arguments, but courts often view them skeptically because they’re often considered last-ditch efforts,” she says.

Florida plans to execute John Ruthell Henry, convicted of killing his wife and her son, Wednesday evening. A federal appeals court has rejected a bid to delay his execution.