Controversial Georgia Execution Uses Chemical Not Approved for Use on Humans

Troy Davis’s two decade legal odyssey beginning with his 1989 arrest for the murder of Savannah Police Officer Mark Allen MacPhail reaches its climax at today’s final clemency hearing, the last stop before his execution on Wednesday, September 21st in a Georgia execution chamber. If the execution proceeds, Mr. Davis’s death will be accomplished by injecting him with a drug manufactured for animal euthanasia, never meant for use on humans. The use of this drug, pentobarbital, has been the focus of several legal challenges asserting that its use is “cruel and unusual punishment” prohibited by the Eighth Amendment.

Those efforts have failed thus far.

The three-drug, lethal injection protocol which has been the standard for executions for decades is now unavailable to Georgia authorities because its Danish manufacturer has refused to export it to the United States, saying that “Lundbeck adamantly opposes the distressing misuse of our product in capital punishment.” After the Department of Justice seized its supply under circumstances which suggested that Georgia had illegally obtained the drug, Georgia substituted pentobarbital, a veterinary barbiturate not approved for use in humans.

Remarkably, a June 20, 2011 Georgia execution using pentobarbital was videotaped to determine its physical effects, which were described by an AP reporter in this way:

“As the injection began, he [Blankenship] jerked his head toward his left arm and made a startled face while blinking rapidly. He soon lurched to his right arm, lunging with his mouth agape twice. He then held his head up, and his chin smacked as he mouthed words that were inaudible to observers.”

The Eleventh Circuit was unimpressed by this evidence, however, and thirty days after the Blankenship execution ruled the death cocktail fit for use. While most of the publicity surrounding Troy Davis’s execution has largely focused on his potential innocence, the haste with which the machinery of death has moved to legitimize such questionable medical protocols perhaps raises the most important Constitutional questions of all.



Originally post in the Harvard Law & Policy Review

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