by By Rose Carmen Goldberg*
“Welcome to Groundhog Day,” as former Justice Scalia once said. The scene is familiar. This month, yet another pharmaceutical company has voiced opposition to use of its drugs in executions. In a public statement, pharmaceutical juggernaut Pfizer announced it will not supply drugs for lethal injections, and will enforce strict distribution restrictions to this end. Yet the scene is also different. Though many pharmaceutical companies have spoken out against the death penalty before, Pfizer’s ban is rightly regarded as a watershed. As the second largest pharmaceutical company in the world, its policy is likely to substantially impact the already dwindling availability of lethal injection drugs. This is legally significant for two interrelated reasons.
First, Pfizer’s move may bring lethal injection protocols closer to constituting a “substantial risk of serious harm.” This is an essential prong of the two-part Baze v. Rees test that courts use to assess the constitutionality of lethal injection methods under the Eighth Amendment’s prohibition against cruel and unusual punishment. In effect, Pfizer has closed off one of the last open market sources of traditional lethal injection drugs. As a result, states are even more likely to resort to alternatives, such as non-FDA approved drugs (“off-label”), which come with increased risks of harm to prisoners. As a general matter, off-label drug use lacks the FDA-supported evidentiary bases and labeling instructions that promote sound administration. In the death penalty context, where medical expert involvement and clinical data are especially lacking, the risks attendant on off-label use reach “substantial” proportions. Simply put, Pfizer’s ban pushes states toward riskier options and brings them that much closer to breaching constitutional protections.
Second, the Baze standard also turns on whether an execution protocol is “objectively intolerable.” Pfizer’s choice is poised to further establish the required sense of intolerableness. That Pfizer, a profit-motivated institution, has found cause to disclaim lethal injection shows that the intolerableness of this practice now runs quite deep. Unlike public sector anti-death penalty activists and religious objectors, Pfizer does not act primarily out of moral obligation or respect for the intrinsic value of human life. Yet even Pfizer has found the death penalty intolerable. Pfizer’s message has thus further expanded the intolerableness of lethal injection across institutional divides.
In a more straightforward sense, Pfizer’s ban will affect the degree of “intolerableness” because this standard depends on frequency of use. The fewer the number of states that use a given method of execution, the less tolerable it is. Many states, attuned to the risks of lethal injection stemming from decreased drug supplies and the lack of FDA-approved drugs in particular, have already instituted moratoriums. Pfizer’s decision portends more. Indeed, in the wake of the Supreme Court’s most recent Baze case, in which the Court found that the degree of intolerableness had not yet reached constitutional dimensions, the state stayed the very execution that the Court had sanctioned. It was unable to access “appropriate” drugs. These indicia of intolerableness are only bound to become more stark, and judicially cognizable.
Baze remains the authoritative doctrine on the constitutionality of methods of execution, as the Court’s decision in Glossip v. Gross confirmed last summer. Glossip added a few controversial twists to the Baze standard that divided the Court, such as an apparent requirement that prisoners identify known available alternatives in order to nullify a given lethal injection protocol. Nevertheless, given the potential significance of Pfizer’s decision under the Baze standard’s core tenets, we are perhaps getting closer to the Supreme Court issuing an opinion of its own of the same ilk as Pfizer’s. Indeed, Pfizer purports to make “its products to enhance and save the lives of the patients [it] serve[s]” and the Supreme Court arguably rules to protect the integrity of human life. Consistent with these values, the Supreme Court now has sturdier ground, and perhaps an obligation, to likewise “strongly object” to lethal injection capital punishment. As Justice Sotomayor once said, to do otherwise is to leave prisoners “exposed to what may well be the chemical equivalent of being burned at the stake.”
* Rose Carmen Goldberg holds a J.D. from Yale Law School; an M.P.A from Columbia University; and a B.A. from St. John’s College, Santa Fe, New Mexico.