NEW YORK/BOSTON (Reuters) - States with the death penalty that are running short of the drugs needed to carry out lethal injections will face legal challenges if they take up other methods of execution such as toxic gas or firing squads, defense lawyers said.
Some of the 31 U.S. states with capital punishment are considering alternatives because of a sales ban by global pharmaceutical companies that began five years ago over ethical concerns. Death penalty critics say that attempts to use substitute drugs made by lightly-regulated companies, meanwhile, have created quality control issues.
This week, a convoluted legal battle unfolded in Arkansas over the state's plan to execute eight convicts in 11 days. The rushed schedule was prompted by the expiration at the end of April of the state's supply of the Valium-like sedative midazolam, which is used to sedate prisoners before death. The drug has been linked to several botched executions.
All death-penalty states call for lethal injection as the primary method of killing, in part because the U.S. Supreme Court has twice affirmed its legality despite claims from death row inmates that it can cause needless pain.
In response to the sales ban, several states have weighed other options, both old, such as firing squads, and new, such as nitrogen gas. In the past, some states used gas chambers filled with hydrogen cyanide.
Defense lawyers, however, would likely challenge those options as violating the U.S. Constitution's ban on cruel and unusual punishment, starting with whether the procedure posed a risk of unnecessary pain.
"The first thing we would review is the protocol that is in place, and look at other executions by that method by other states to determine whether or not there have been problems," said Dale Baich, a federal defender in Arizona who has worked on numerous death penalty appeals.
Courts have generally seen newer forms of execution like lethal injection as more humane, potentially making it difficult for states to argue that older methods like firing squads are better, said Richard Jaffe, an Alabama lawyer who has defended 60 people facing the death penalty.
Unlike lethal injection, courts have not recently grappled with the legality of alternative methods. The Supreme Court ruled the firing squad was constitutional nearly 140 years ago, for instance.
Kent Scheidegger, legal director of the nonprofit Criminal Justice Legal Foundation, which supports capital punishment, said death penalty critics had pressured drug companies into cutting off the supply of drugs, thereby causing problematic executions when states turn to inferior drugs.
Scheidegger said he favors the use of nitrogen gas as an alternative if lethal injection drugs are unavailable, noting that it is used every day by veterinarians as a way of putting animals down painlessly.
"I don't think murderers deserve a painless death, frankly," Scheidegger said. "But as far as removing obstacles from getting these sentences carried out, I think that's the way to go."
Seven states permit the use of secondary methods if lethal injection is ruled unconstitutional or if the necessary drugs are unavailable, according to the National Conference of State Legislatures.
Six other states allow inmates to choose another way of dying, such as a firing squad, hanging or electrocution.
"If we shift to another method, that guarantees litigation," said Douglas Berman, a law professor at Ohio State University who has studied capital punishment.
A number of states have effectively halted executions because of concerns over the process. Since 2015, only seven states have successfully put prisoners to death, with Texas accounting for 24 of 54 executions.
Mississippi approved a law this month permitting the use of nitrogen gas as an alternative. Oklahoma became the first state to do so in 2015, and Alabama lawmakers are considering similar legislation. But that procedure has not been tested.
"If they tried nitrogen, I am sure there will be challenges to that because that method is another experiment," Arizona federal defender Baich said.
Additional reporting by Laila Kearney and Anthony Lin in New York and Jon Herskovitz in Austin, Texas; editing by Grant McCool