Last night, Nebraska voted to bring back the death penalty. A slim majority of California voters, given the choice between abolishing state-sanctioned killing and speeding it up, opted for the latter: Proposition 66, which deprives death row inmates of certain appeals processes, passed by 51 percent. Meanwhile Proposition 62, which would have abolished a practice abandoned in all other Western countries, got only 46 percent of the vote in a state so liberal that it legalized marijuana last night.
Oklahoma, which has a less than stellar record in administering the death penalty—prison officials have a long and sordid history of botched executions—voted to entrench capital punishment in its state constitution, declaring executions free from intervention by state courts that might deem the state’s execution tactics cruel and unusual punishment.
This begs the question: how exactly do all these states plan to kill people given the shortage of lethal injection drugs?
Thanks to a successful activist campaign, mainstream pharmaceutical companies no longer provide US Departments of Correction with drugs to be used for executions. The European Union forbids the sale of death penalty drugs, so companies based in Europe have to actively ensure their drugs don’t end up in the death chamber needle; many drug manufacturers force their distributors to sign contracts pledging not to sell their drugs to US prisons for use in executions.
The lack of death penalty drugs has led states to turn to a wide array of unconstitutional and inhumane tactics. A handful of states have passed secrecy laws that shield the identities of small-scale compounding pharmacies that agree to make the drugs. Others have experimented with drug cocktails that have led to deaths “akin in level of pain and suffering to being buried alive, burning at the stake,” death penalty critics have argued.
Let’s see what California, Oklahoma, and Nebraska plan to do.
Traditionally, a three drug cocktail is used in executions: an aneasthetic, a paralytic, and a third drug that stops the heart. As part of Proposition 66, California will shift to single drug executions. Prisoners also have the option of the gas chamber. As the AP reports, two of the drugs have not previously been used to administer death. California “is engaging in nothing less than human experimentation,” Ana Zamora, the ACLU’s criminal justice policy director, told the AP.
How about Oklahoma? In 2014, Oklahoma temporarily stopped executions following the botched killing of Clayton Lockett. After upending its entire execution protocol, the state gave it another try with the execution of Charles Warner in 2015—his final words were, “My body is on fire.” A grand jury report later found that the pharmacist who provided the drugs for the execution accidentally ordered the wrong drug. Prison officials only realized the error when they were about to execute Richard Glossip—even then, they tried to hide their mistake and proceed with the execution.
According to News9, part of the point of Oklahoma’s State Question 776—approved by 66.37 percent—is to allow the state to continue carrying out executions even if some drugs are deemed unconstitutional by state courts. “Any method of execution shall be allowed, unless prohibited by the United States Constitution” and the execution protocol “shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments,” the measure read as Time reports.
What about Nebraska, whose Gov. Pete Ricketts spent $400,000 in a campaign to undo the state legislature’s repeal of the death penalty? Buzzfeed‘s Charle McDaniel has chronicled the state’s tragicomic efforts to get death penalty drugs. In 2015, the Nebraska Department of Corrections blew $50,000 to obtain lethal injection drugs from a shady supplier based in India. The drugs were detained in India because as it turns out, you can’t just buy and transport lethal injection drugs across international borders.
“After the shipment was blocked, Nebraska attempted to get a refund on the money it spent. The supplier declined,” McDaniel points out.