March 01, 2011

Lethal Injection Challenges Across the Country

The drug “cocktail” used to execute prisoners typically contains three drugs: sodium thiopental (to induce unconsciousness); pancuronium bromide (to cause muscle paralysis and respiratory arrest); and potassium chloride (to stop the heart).  Lethal injection is the primary method of execution in all states where the death penalty is authorized, the military, and the federal government.

On January 21, 2011, the sole U.S. manufacturer of sodium thiopental, Hospira Inc., announced that it will no longer produce that anesthetic.  The decision came as a result of the Hospira production facility’s relocation to Italy where officials demanded assurances that the drug not be used for executions.  In order to work around the shortage of sodium thiopental, some states, such as Ohio and Texas, are changing their protocol and using pentobarbital instead.  This drug is typically used to induce surgical comas and is chemically related to a version of pentobarbital used to euthanize animals but has also been employed in physician-assisted suicides.  The drug was chosen based on its availability and manufacture in the United States.

Due to the lack of studies for the use of pentobarbital in executions, there are concerns about its efficacy.  Natasha Minsker, Death Penalty Policy Director of the Northern California American Civil Liberties Union, noted that “this drug in particular is critical to whether or not the execution is being done in a proper manner, whether the execution is actually constitutional, so there are very real questions about whether these drugs can be used and should be used.”

Fordham Law School Professor Deborah Denno, an expert on lethal injection, notes that legal battles force prison officials to reveal drug sources and expiration dates.  Changes in protocol can lead to delays in the execution process, as prisoners may sue to demand proof that the new drug, or specific uses of it, will not violate the 8th Amendment prohibition of cruel and unusual punishments. 

The use of pentobarbital has not yet been examined by the U.S. Supreme Court.  The Court addressed the issue of  lethal injection in 2008 when it held in Baze v. Rees that the three drug cocktail used by Kentucky did not constitute cruel and unusual punishment because it did not create a substantial risk of unnecessary pain or serious harm.  Baze applies only to that specific drug combination.  The shortage of sodium thiopental will have a significant effect on the ability of states to carry out lethal injections until a satisfactory substitute is approved.

On March 10, 2011, Ohio carried out the execution of Johnnie Baston with a single dose of pentobarbital, marking the first time any state carried out a death sentence using solely pentobarbital.

In mid-March the Drug Enforcement Administration seized Georgia’s supply of sodium thiopental over concerns that the Georgia Department of Corrections circumvented federal law when securing the scarce drug.  The seizure represents the latest event regarding the use of lethal injection drugs but will likely not be the last.