The Supreme Court's Death Penalty Problem: Drugs, Vague Standards

How long can the status quo hold?

In the face of a new wave of death penalty problems and legal challenges, the Supreme Court refused to intervene, leaving three cases, involving drugs used in executions, the standard for mental retardation, and judicial overriding of jury sentencing, in place.

Though the court didn't hear these cases, these three issues seem particularly capable of repetition:

Drug Problems

This may be the be the issue that will end the death penalty. As NPR reports in their exhaustive feature, many states are simply running out of drugs to use in executions. Some domestic companies have stopped producing drugs, in large part to distance themselves from executions. Other companies, based in the European Union, have to contend with EU regulations that prevent them from exporting drugs that will be used in executions.

To fill the void, states have gotten desperate. After trading between states failed to satisfy the demand, there were tales of state officials buying expired products from backroom pharmacies in London. Now, they're moving to compounding pharmacies, a subset of the pharmaceutical industry that specializes in custom dosages and delivery mechanisms, and which is not regulated by the Food and Drug Administration. Because of a lack of oversight, there is a risk that the drugs employed could be defective.

Earlier this week, Missouri executed Joseph Paul Franklin, a serial killer who was also responsible for shooting magazine publisher Larry Flynt. The state used drugs obtained from a compounding pharmacy, after the Supreme Court refused to hear the case, reports Reuters.

A similar issue is facing Warren Lee Hill, a mentally-retarded inmate in Georgia who is set to die. He is currently challenging the use of compounding pharmacies in state court, arguing that the manufacturer and content of the drugs should be disclosed to his attorneys, in case a legal "cruel and unusual" punishment argument is warranted.

Categorical Exclusions

Speaking of Warren Lee Hill, the Supreme Court denied his appeal earlier this term as well. Though the court previously banned execution of the mentally retarded, at the time of his trial and appeals, experts differed on Hill's diagnosis. However, the experts that once believed him to be malingering have changed course. The Eleventh Circuit held that it was too late, and that the Antiterrorism and Effective Death Penalty Act (AEDPA) barred review of an issue that had previously been addressed by the court.

SCOTUS's punting of the case means, failing a successful drug challenge or pardon, Hill will be executed. Though his case may be unique due to the flip-flopping of the experts, it did illustrate the vagueness of the mentally retarded standard. Is it strictly an IQ test? How functional must a person be to cross the line into executable?

State-Specific Procedures

Georgia's next-door neighbor has its own problem. In Alabama, no matter what the jury decides, the judge can override their recommendation (of a life sentence) and impose death.

Earlier this week, Justice Sonia Sotomayor wrote an exhaustive dissent from the denial of certiorari, pointing out the faults with Alabama's system. For one, she cited statistics that showed the judges, who are popularly elected in the state, were more likely to override the jury and impose death in an election year.

In addition, under the court's holdings in Apprendi and Ring, any factors that increase a defendant's possible sentence (here, to death), must be proven to a jury. In Georgia, the jury considers the aggravating and mitigating factors, then makes the factual determination of whether the aggravating factors outweighs the mitigation. Sotomayor argues that this final weighing of factors falls under the Apprendi and Ring framework.

Gone, But Not Forgotten

The court may have denied these three individual cases, but they do seem like issues that present an ongoing controversy. Out of the three, the compounding pharmacy issue seems particularly likely to result in litigation, especially due to the nationwide shortage of drugs.

Out of the three, which do you think is the most likely to make the Supreme Court's docket? Join the discussion on LinkedIn  and share your thoughts with us.

Related Resources:

• Supreme Court declines to hear Alabama death penalty case (Reuters)
• Supreme Court Should Stop Warren Lee Hill's Execution Say Amici (FindLaw's U.S. Supreme Court Blog)
• Supreme Court Declines to Block Texas Abortion Restrictions (FindLaw's U.S. Supreme Court Blog)