The shortage of drugs used in lethal injections could create an avenue for lawyers to delay executions while creating a constitutional conundrum for states and the Supreme Court, legal analyst Michelle Suskauer says.
On Monday, the Oklahoma Supreme Court postponed the executions of Clayton Lockett -- convicted of raping, shooting and burying alive a 19-year-old woman in 1999 -- and Charles Warner -- convicted of the murder and rape of his girlfriend's 11-month-old daughter in 1997 -- when the state revealed it didn't know what drugs it planned to use for their lethal injections.
On Tuesday, the U.S. Supreme Court refused to stay the execution of William Rousan, convicted of two murders in 1993, after a similar argument was made by attorneys in Missouri. Gov. Jay Nixon denied clemency and Rousan will be executed.
Suskauer told J.D. Hayworth, John Bachman, and Morgan Thompson on "America's Forum" on Newsmax TV that the recent rulings in Oklahoma and Missouri may just be the tip of the legal iceberg in this latest chapter of court wrangling over the death penalty.
"I think this is an intriguing case," Suskauer said Wednesday. "There's so much that's going on and this is really just the beginning of a tremendous amount of litigation across the country."
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The situation has come about since domestic pharmaceutical companies began shying from creating the drugs used in lethal injections because they did not want to be connected with the divisive issue.
That led the government to look overseas for the drugs, but since 2011 European firms have refused to sell barbiturates to U.S. prisons for executions and the last U.S. company that made the anesthetic that was commonly used has ceased production.
Since then, state corrections officials have been forced to come up with new, unproven death cocktails or turn to less-regulated compounding pharmacies. Both alternatives have not worked.
According to NBC News
, the January execution of Dennis McGuire, who raped and murdered a 22-year-old woman who was seven months pregnant in 1989, by a combination of midazolam and hydromorphone took 25 minutes and he was described as gasping for breath.
Last month, an Oklahoma district court declared that a 2011 supplier secrecy law, which officials said was needed to coax companies to produce scarce execution drugs, was unconstitutional.
According to Suskauer, since death row inmates in the U.S. have the right to know how they will be executed, as well as constitutional protection from cruel and unusual punishment, the use of unknown compounds from unknown sources yielding undocumented results may give death row inmates new legal grounds on which to appeal.
"There are specific rules that need to be used," Suskauer said. "It's a question of is this a violation of the Eighth Amendment?"
Suskauer indicated that ultimately this could lead to either a change in how death row inmates are executed or the end the death penalty altogether.
"There are some [states] that are not using lethal injection, but you can't just snap your fingers and say, 'By the way, we're not going to use lethal injection,'" Suskauer said.
"It needs to go through, of course you know, the legislature. There needs to be approval. We may see changes in the way that executions are done in terms of not using lethal injection anymore, or what we may see is certain states either having a moratorium on the death penalty, like we're seeing, or the death penalty not being used."
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