The grisly prospect of more botched executions, like the lethal injection that went wrong in Oklahoma last month, has gotten the attention of the U.S. Supreme Court.
States around the country have been facing shortages of lethal injection drugs and have been turning to compounding pharmacies to produce lethal injection cocktails. But critics say that states have no way of testing these new lethal injection drug cocktails, and lawyers are challenging the injections as cruel, arguing that they inflict pain and suffering instead of the intended humane end.
Companies that used to supply lethal injection drugs have since ceased because manufacturers no longer wanted to be associated with executions, or did not want their drugs, which were intended for things like surgery, to be used for lethal injections, which has caused shortages and has pushed states towards these compounding pharmacies.
Until the issue is sorted out, Tennessee is considering an alternative. Last night, Tennessee's Republican Governor Bill Haslam signed a bill into law that would allow the state to bring back the electric chair in the event that they cannot obtain the drugs needed to administer lethal injection. In Wyoming, legislators have begun to draft a bill that would reintroduce executions at the point of a gun.
Ed Pilkington, chief reporter for The Guardian, explains that some states are rolling back the clock on capital punishment by looking to older traditions as concerns grow over the use lethal injections.
Though we might not see an electric chair execution anytime soon, Pilkington says it's not completely out of the realm of possibility.
"At the moment I still think we're at the level of fantasy (for an electric chair execution), though last night certainly brought it several stages closer to reality," he says. "The fact that the governor actually signed the law was really significant. It was the first time that a state has actually proposed imposing something like the electric chair or the firing squad, whereas other states it still exists as an alternative that prisoners can choose."
While death row inmates in other states can choose the electric chair, Pilkington says this law could make it so Tennessee prisoners have no say in how they're executed.
"I think it's just a sign of this crisis that is spreading across death penalty states at the moment," he says. "Wyoming has also started talking about bringing back the firing squad. It still exists in Utah, and they too are talking about bringing it forward as something that the state might impose upon prisoners. You're starting to see Missouri, which is one of the main death penalty states at the moment, has talked about rebuilding its gas chamber."
Pilkington says that the narrative around the death penalty in the United States is beginning to unravel as more states turn to alternatives that, while still legal, have been scrubbed from the public's consciousness over the last four decades as states increasingly turned to lethal injections.
"For the last 40 years, America has been trying to square this circle—trying to be humane in the way that they kill people," he says. "And we're starting to find that's coming apart because the medical profession is no longer playing ball. The pharmaceutical companies aren't playing ball—they're not allowing their drugs to go to the prison services—doctors aren't playing ball, nurses aren't playing ball. As a result, the whole edifice that we can kill people judically and humanely is starting to come apart. When that happens, people start thinking, 'Well, what else are we going to do?'"
If pharmaceutical companies don't start producing lethal injection drugs, the government may have to begin contracting outside parties to produce the toxic drugs. Without it, the American people will have to confront a new reality when it comes to the death penalty.
"What are the American people prepared to put up with?" says Pilkington. "How far are they prepared to go in terms of what is done in their name?"
Because of the violent history of World War II Germany, Pilkington says that is unlikely that Americans will tolerate execution by gas chamber. He does, however, say that might not be the case for a firing squad.
"Using firing squads, you could say that's incredibly humane because the prisoner dies within seconds—they have four bullets in their heart, and you don't survive something like that," he says. "You can say it's more humane, but will the American people be prepared to do that? Will they be prepared to see guns lined up and shot from 20 feet away at a prisoner?"
Pilkington adds that death penalty states are trying anything that they can think of.
"There's a sense of desperation spreading across these states," he says. "I think what's happening is there's a sense of such mayhem and randomness spreading in these states that eventually the Supreme Court, which has been fending off this subject quite markedly until now, I think the Supreme Court will be forced to deal with it."