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As it has transformed almost every aspect of social and economic life in America, the coronavirus pandemic has forced local governments and public health officials to think about incarcerated populations in new ways. Concentrated in crowded, often unsanitary conditions where social distancing is impossible, prison populations face heightened risks of contracting COVID-19, and prisons themselves can easily become virus hotspots once an inmate is exposed. Since the end of March, when testing became widely available for incarcerated populations, there have been at least 95,000 cases reported among prisoners, with at least 847 deaths across the country. In the first few months of the pandemic, researchers reported that incarcerated populations were 5.5 times more likely to contract COVID-19 and 3 times more likely to die from the virus.[1] In response, many state courts and corrections departments have embraced novel protective measures, with some jails releasing inmates or reducing admissions. Even with these piecemeal measures in effect, however, incarcerated populations remain among the most vulnerable to the spread of COVID-19, and the virus has spread like wildfire in the prisons that it has touched. As a result, new debates about the institutions of mass incarceration are emerging, as reformers approach familiar problems with renewed vigor and original perspectives.
For example, the pandemic has affected death row inmates in a variety of unexpected ways. Fearing that public executions will create new chains of transmission among those forced to attend them, many states have delayed executions, and defense attorneys across the country have urged courts to push sentencing for defendants who may be sent to death row. As states grapple with the economic toll that coronavirus has taken on government budgets, some lawmakers have even urged their fellow legislators to consider abandoning the punishment altogether, citing the enormous costs of housing inmates on death row and the increased costs of litigation in capital cases.
These new debates surrounding the death penalty come at a time of crisis for the institution. Over the past few decades, public support for capital punishment has steadily declined. While the death penalty is still legal in 28 states, national support for the practice is now at an all-time low in America. As criminal justice reform continues to gain bipartisan support, a strong coalition of diverse interests has converged to oppose capital punishment. Pointing to the lack of convincing evidence that the death penalty deters violent crime, critics argue that the benefits of capital punishment grow increasingly dubious with every new study, while its costs are undeniably staggering – not only for the incarcerated who sit on death row, but for the rest of society as well.
One episode in the early months of the coronavirus pandemic brought attention to an unexpected public cost of capital punishment. In April, as states found themselves unprepared for the realities of the rapidly spreading pandemic, hospitals faced serious shortages of medical supplies like sedatives and painkillers. Seven leading medical professionals from across the country wrote an open letter to the corrections departments of all death penalty states asking for drugs that the states had stockpiled for lethal injections. The letter’s request was unusual, even unprecedented, but it was also a calculated, necessary measure in desperate times. Hospitals found themselves overwhelmed with patients, and shortages were so dire that the Drug Enforcement Administration loosened restrictions on narcotic medications that could help patients on ventilators.
Lethal injection drugs that are normally used to sedate or paralyze prisoners could instead be repurposed as sedatives for coronavirus patients forced to rely on ventilators to stay alive. Most death penalty states administer executions with a three-drug protocol that begins with a sedative or anesthetic and ends with a paralytic and potassium chloride, which ultimately stops the prisoner’s heart. The same drugs that are often used to sedate prisoners, midazolam and fentanyl, have been used by hospitals to sedate coronavirus patients so that they can be put on ventilators. Two other drugs, vecuronium bromide and recoronium bromide, that have been used as paralytics in executions are being used to intubate patients before they are put on ventilators. As the experts put it in their letter, drugs normally used to execute death row inmates could instead “be used to save the lives of potentially hundreds of patients suffering from COVID-19 and potentially thousands of patients in other ICU settings.”
As Professor Austin Sarat has noted, the letter forced death penalty states to face a “grim irony.” The most ardent supports of the death penalty have always insisted that true respect for the sanctity of human life requires proportional, harsh retribution for convicted murderers who have violated the right. But it is clear from the dilemma posed by the open letter that capital punishment also imposes its own costs on the sanctity of life, not only for the death row inmates awaiting execution but also potentially for the rest of society as well. Even before the COVID-19 pandemic, medical professionals consistently warned that states’ stockpiles of lethal injection drugs could create serious shortages of essential drugs in the medical community. One signatory of the COVID-19 letter highlighted the perverse irony well when he said, “stockpiling drugs intended to save lives in order to kill people was never acceptable, but that is especially the case now when it is actually harming the public in the face of the coronavirus crisis.”
Despite the desperate plea for assistance, however, no death penalty states have agreed to share their stockpiles of sedatives. Several states simply did not acknowledge the request. Others claimed not to possess the correct drugs to sedate coronavirus patients. But limited public health records revealed that a handful of states – Florida, Nevada, and Tennessee – had at least enough drugs stockpiled to intubate an additional 137 patients. Ultimately, lethal injection drugs can be difficult to obtain, and some commentators have speculated that states are reluctant to repurpose drugs that cannot be easily replaced.
Unfortunately, there is no way to know exactly how many lives might have been saved if death penalty states had turned their drugs over in the early months of the pandemic, as recently enacted laws allow states to keep much of their death penalty procedures secret. As a result, there is no way to know exactly what drugs – and in what quantities – states have stockpiled for executions. These secrecy laws are designed to allow states to obtain the necessary drugs for lethal injections without publicly disclosing the manufacturers who provide the drugs (such disclosures would deter most manufacturers from continuing to supply the drugs[2]). But this expanding secrecy has also severely diminished transparency and public accountability for practices surrounding capital punishment. To obtain drugs for executions, for example, states have often had to break federal laws and mislead drug suppliers, and the newly enacted secrecy laws allow states to conceal evidence of these questionable practices. At the same time, botched executions are becoming more and more common, and the need for accountability seems more and more obvious with each misstep.
But the coronavirus pandemic has demonstrated that these secrecy laws do not just harm death row prisoners; they can also hamstring society as a whole in its efforts to address public health concerns. When death penalty states can conceal their stockpiles of lethal injection drugs, there is no way to ensure that they are not hoarding medication at the expense of hospitals fighting fiercely to contain global health crises. As a 2017 brief filed in the Arkansas Supreme Court noted, “diverting the medicines to executions and away from healthcare creates unnecessary shortages for patients who need them most. Medicines that could be used to protect life are instead being used to end it.” Nothing highlights the cruel irony of this dilemma more starkly than a global pandemic that has stretched hospitals far beyond their capacities. States’ refusals to even acknowledge a desperate plea for medication underscores how recently-enacted secrecy laws have created a black box of accountability surrounding capital punishment, even as public support for the institution grows more and more dubious by the day. As the COVID-19 letter concluded, “at this crucial moment in our country, we must prioritize the needs and lives of patients above ending the lives of prisoners.” The coronavirus pandemic has already laid bare many of the inequities and shortcomings that states must now grapple with: from holes in the social safety net to unequal access to health care and education. Now, it has revealed the costly trade-offs that death penalty states will make to insulate the institution from public scrutiny, as they have chosen to stockpile drugs rather than save lives.
[1] Researchers also note that these figures likely underestimate the actual prevalence of COVID-19 among incarcerated populations, as some prisons are not testing inmates at all and others aren’t reporting their cases.
[2] Worried about the public backlash that might result should it be revealed that they provide drugs for lethal injections, drug companies have gone to great lengths to either stop states from using their products for executions or to keep their involvement secret from the public.
Jeremy Dang graduated from Harvard Law School in May 2021.
This post has been adapted and updated from its original form, which ran on August 24, 2020 on the COVID-19 and the Law blog.
