In a report titled "Irreversible Error," the Constitution Project says states should use the most scientifically reliable method in death-penalty cases. That means using only drugs approved by federal regulators for use in humans, the group said, also calling for the public to have an opportunity to comment before states adopt lethal injection procedures.
States relying on lethal injection as a means of execution should use a deadly dose of a single anesthetic or barbiturate approved by the U.S. Food and Drug Administration, rather than a complex mixture of drugs, the dosage and administration of which can easily be miscalculated, the group said.
Last week's execution of Clayton Lockett was the first time Oklahoma used the sedative midazolam as the first element in a drug combination. Lockett writhed on the gurney, gritted his teeth and moaned before being pronounced dead of an apparent heart attack 43 minutes after the execution began.
"The cause of the problems in Oklahoma isn't known at this point, but regardless, a one-drug protocol would be a substantial improvement over the two- or three-drug" mixture, said Sarah Turberville, senior counsel at the Constitution Project, a Washington-based group that promotes bipartisan consensus on the death penalty, wrongful executions and the importance of independent courts.
Regarding the Oklahoma case, a report issued last week by the state's Department of Corrections director, Robert Patton, said Lockett had self-inflicted wounds on his arm, and the execution team was unable to find suitable veins in his arms, legs and neck. An IV was inserted into Lockett's groin area and the execution began.
Many domestic and foreign drugmakers have objected to using their products in executions, leading to acute drug shortages. States sometimes procure substandard sodium thiopental, and federal drug enforcement agents have seized some states' supplies. As a result, some states have turned to compounding pharmacies, which often are unregulated. Sodium thiopental is a fast-acting barbiturate previously used as part of a three-drug mix to reduce unnecessary pain and suffering in execution.
State laws governing executions vary based on the availability of drugs that could be used. States have enacted laws to shield execution protocols from freedom of information requests, prohibiting the public dissemination of that information on the lethal injection process. The secrecy protects the identities of the suppliers.
Lethal injection is used for capital punishment by the federal government and all 32 states where the death penalty has not been abolished. In 2007, the U.S. Supreme Court found that execution by a three-drug mixture does not violate the Constitution. Sodium thiopental induces unconsciousness; pancuronium bromide causes muscle paralysis and respiratory arrest, and potassium chloride stops the heart.
"Without substantial revisions — not only to lethal injection, but across the board — the administration of capital punishment in America is unjust, disproportionate and very likely unconstitutional," said Mark Earley, a former Republican attorney general of Virginia and a participant in compiling the report. During Earley's tenure Virginia carried out 36 executions. The Constitution Project study encompassed aspects of capital punishment from executions to clemency.
Following the Lockett case, attorneys for a Texas death row inmate, Robert Campbell, filed a federal civil rights lawsuit seeking to delay his execution. On Tuesday, Campbell's lawyers said Texas prison officials must reveal the source of the pentobarbital to be used in Campbell's execution scheduled for May 13. Otherwise, they said, his punishment could be "as horrific as" Oklahoma's execution of Lockett.
Other recommendations in the report:
—The criminal justice system should improve implementation of the Eighth Amendment's prohibition against execution of individuals who have intellectual disabilities. An IQ below 75 should be presumed sufficient to make a person ineligible for execution. If a court determines before a trial that evidence of intellectual disability is not sufficient to render a defendant ineligible for the death penalty, the defendant should be permitted to raise the issue at trial for determination by the jury.
—Congress should develop federal standards for accrediting forensic labs, and only examiners from labs that meet the accreditation standard should be allowed to testify in capital punishment cases. Forensic labs should operate independently of law-enforcement agencies to avoid bias in processing forensic evidence.
—The clemency process should be more fair, transparent and predictable, with opportunities for death-row inmates to present a case to officials in the criminal justice system who make clemency decisions.