Louisiana A.G. Floats Electrocution, Firing Squad as Death Drugs Remain Scarce

Republican A.G. tries to bring Dem. Gov's execution freeze to an end

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July 25, 2018

Louisiana Attorney General Jeff Landry (R.) on Tuesday called on Gov. John Bel Edwards (D.) to take action to end Louisiana's death penalty moratorium, echoing law enforcement leaders nationwide frustrated with stalled death rows.

Landry, who is seen as a possible future challenger for the governorship, released a letter Tuesday evening in which he called on Edwards to back a number of changes to state law, including the introduction of different execution drugs and the legalization of alternatives to lethal injection. This would make it easier to proceed with executions, which Landry believes the Governor is dragging his feet on implementing.

This is the second letter Landry has sent to Edwards on the topic, with the first being in response to the Louisiana Department of Corrections' announcement that it would yet again stay all executions in the state. The stay was prompted by litigation in Hoffman v. Jindal, an on-going federal court case with a plaintiff claiming that Louisiana's lethal injection protocol violates the Eighth Amendment.

Landry informed Edwards that he would instruct all of his employees to cease defending the DOC in the case, a decision Landry said came after "exhaustive efforts" to get Edwards to actually enforce the death penalty.

In a response to Landry, the governor's office blamed the law, rather than the governor, for the continuing moratorium. However, Landry claimed in his Tuesday letter that the secretary of corrections had said it was Edwards who did not wish to see executions restarted.

America's death rows remain full-to-bursting, a byproduct of nationwide efforts by death penalty opponents to gum up the machinery of execution. This strategy has been implemented, for example, by litigation challenging the constitutional licitness of certain forms of lethal injection, as well as lobbying of foreign pharmaceutical firms to block the export of drugs like thiopental and pentobarbital, both used historically to great effect in executions.

There has been a moratorium on the death penalty in Louisiana since 2016; the last time the state actually executed one of the seventy-some men on its death row was 2010. The moratorium was initiated thanks to Hoffman: As part of the suit, plaintiff Jessie Hoffmann demanded to know the specifics of Louisiana's protocol as it will be implemented on him.

Answering this question is harder than it may seem, because the state has struggled to obtain the drugs needed to actually execute any of the convicts currently on death row. Landry's letter called on the governor to back policy changes that would ameliorate this problem by expanding the number of drugs available to the Department of Corrections: for example, permitting the single use of Midazolam, without the currently required addition of hydromorphone, as an execution drug.

Landry also wanted the governor to support the use of compounding pharmacies, which create small quantities of drugs, to circumvent pharmaceutical companies and allow the Department of Corrections to make execution drugs itself. The state had previously considered purchasing execution drugs from a Tulsa, Okla., compounding pharmacy, but that pharmacy was not legally permitted to sell outside of the state.

In addition to expanding the number of drugs available, Landry called for using other methods of execution where lethal injection was not an option. A proposed bill attached to Landry's letter stipulates the use of nitrogen hypoxia, hanging, firing squad, or execution in the event that lethal injection is unavailable.

If Louisiana implemented Landry's proposal, it would join the list of states giving up on lethal injection and embracing execution methods that are cheaper and less dependent on pharmaceuticals.

Oklahoma became the first state to announce the use of nitrogen hypoxia, which kills painlessly through suffocation with nitrogen, in March. Utah permits the use of the firing squad, while Tennessee has the electric chair. And Nevada and Nebraska are considering the deadly opioid fentanyl as an option. Such proposals indicate the desperation of states unable to implement their own laws thanks to activist litigation and lobbying.

However, it is unlikely that Edwards will sign on to such ideas. The governor has avoided expressing an opinion on the death penalty, choosing to say that he will enforce the law, and focusing on his state's success at lowering its first-in-the-nation incarceration rate. Landry called on Edwards to make clear whether or not he actually supported the death penalty.

"Again, I ask: where do you stand?" Landry wrote. "If you truly stand with crime victims and their families, then you will affirm your support with action."