Update on the Death Penalty

By Sharon Frankenberg,
Attorney at Law

On March 10, 2015 the Utah legislature passed a bill allowing firing squads to carry out the death penalty in the event of a shortage of execution drugs.  It is expected that Utah’s governor will sign the bill into law before the April 1st deadline. The bill requires the state to use a firing squad if it is unable to obtain the necessary drugs to complete a lethal injection 30 days before an execution.  Utah is the only state to have carried out a death sentence by firing squad in the last 40 years.  Most recently, convicted murderer Ronnie Lee Gardner was sentenced to death and chose death by firing squad.  He was executed in 2010.  There are only a handful of Utah death row inmates who were sentenced before 2004 who still have the option of a firing squad execution.  That will change if this bill is made into law.

After a bungled execution of murderer-rapist Clayton Lockett by lethal injection last year, Oklahoma lawmakers have passed a bill in the House to utilize nitrogen hypoxia as an alternate method of execution.  Nitrogen hypoxia is achieved by administering nitrogen gas through a mask.  The nitrogen displaces oxygen and allegedly causes a quick, humane death.  It is currently used to euthanize animals.  If the Oklahoma Senate and Governor approve the use of this method, nitrogen hypoxia would become an option in the event that lethal injection is ruled unconstitutional.  Electrocution and death by firing squad would drop down to third and fourth choice alternatives.

In capital punishment states, lethal injection is the most widely utilized but many states have legalized other options.  According to www.deathpenaltyinfo.org, lethal gas is authorized in Wyoming if lethal injection is held to be unconstitutional.  Hanging is still an option in New Hampshire if lethal injection cannot be given. Some states like South Carolina, Florida and Virginia give prisoners a choice between lethal injection and electrocution.

Tennessee has a statute (Tenn. Code Annotated Section 40-23-114) which provides that the method used to carry out a sentence of death shall be by lethal injection.  An exception to this is in the event that the defendant sentenced to death committed the offense for which he or she is being punished prior to January 1, 1999.  In that event, the defendant may elect to be executed by electrocution by signing a document waiving his or her right to be executed by lethal injection.  Another exception is in the event that lethal injection is held to be unconstitutional or if the commissioner of correction certifies to the governor that one or more of the ingredients essential to carrying out a sentence of death by lethal injection is unavailable through no fault of the department.  Then the alternative method of carrying out the sentence of death in Tennessee is by electrocution.

Ironically, it is anti-death penalty forces which have created this need for alternatives to execution via lethal injection.  Lethal injection has generally been thought to be more humane than historical methods of carrying out death sentences like hanging or electrocution.  Unfortunately, the drugs primarily used in lethal injection, sodium thiopental or pentobarbital are no longer produced in the U.S. and Europe has an embargo on exporting the drugs.  The embargo is an attempt to abolish capital punishment but it has resulted in perhaps less humane methods being utilized.  Sharon Frankenberg is an experienced attorney licensed in Tennessee since 1988. Her office number in Knoxville is (865)539-2100.

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