March 01, 2012

Lethal Injection Challenges Continue Across the Country

Rebecca Katz

Sodium thiopental has been in short supply since the only U.S. manufacturer, Hospira, Inc., suspended production in 2010 due to concerns about its use in executions. In early 2011, Hospira announced it would halt production of sodium thiopental permanently. In medical procedures, the drug is primarily used to anesthetize surgical patients and induce medical comas. In executions by lethal injection, the drug is part of a three-drug cocktail: the sodium thiopental sedates prisoners before pancuronium bromide and potassium chloride are administered, paralyzing the muscles and stopping the heart.

The shortage has forced several states to find an alternative to sodium thiopental or sources of the drug outside of the United States. In the past year, the Drug Enforcement Agency has seized drug supplies from Alabama, Georgia, Tennessee, and Kentucky because of illegal importation and has raised concerns about how the drugs were manufactured. Additionally, in December 2011, the European Union banned the export of all lethal injection drugs, including sodium thiopental, to the United States. Some states have attempted to explore alternative foreign sources, but none has been approved by the FDA.

Pentobarbital, a replacement drug for sodium thiopental, has been incorporated in the execution protocol of 15 states, but Lundbeck, the Danish pharmaceutical company that manufactured and distributed the drug, announced in late 2011 that it would no longer sell pentobarbital to prison systems for use in executions. States are scrambling to acquire the drug supply needed to carry out planned executions in the coming months.  Oklahoma now has only enough pentobarbital to carry out one more execution.  Missouri has recently announced that it will use propofol, a surgical anesthetic never before used for executions. The state made this announcement after it carried out its most recent execution in February 2011, just 20 days before its limited supply of sodium thiopental expired.

Attainment has only become more complicated in the past months: in March 2012, Judge Richard Leon, a federal judge in Washington, D.C., ruled in favor of death row prisoners in Tennessee, Arizona, and California who wished to prevent sodium thiopental from being used by prison officials because the drug is unapproved for use in executions and produced overseas. He issued an order and opinion banning the importation of sodium thiopental and stated that the U.S. Food and Drug Administration (FDA) ignored the law in allowing the unapproved foreign-made drug into the country. Without this approval, the drug could fail to render the prisoner unconscious and could result in needless pain and suffering. He ordered the FDA to notify state corrections departments that they must turn over the drug.  The FDA subsequently issued letters to prison officials in Arizona, Arkansas, California, Georgia, Nebraska, South Carolina, South Dakota, and Tennessee, instructing them to make arrangements for the surrender of any foreign-manufactured sodium thiopental in the states’ possession.

The lethal injection method faces additional battles regarding injection protocol and the effectiveness of the drugs in preventing the procedure from being unnecessarily painful to the prisoner. Arizona prisoners have sued the state for giving the state’s corrections director too much discretion in how and where the drugs are injected and in the selection of the officials carrying out executions; Ohio recently resumed executions after a six month judicially-imposed moratorium because prison officials were failing to follow a new protocol; and Alabama courts stayed an execution in March after a death row prisoner argued that pentobarbital does not completely sedate the individual, and its use constitutes cruel and unusual punishment.

Rebecca Katz

Project Asssociate