Most of the 35 states with capital punishment have run out of a key lethal injection drug or will soon, according to an Associated Press review. And in many places, switching to another drug could prove a difficult, drawn-out process, fraught with legal challenges from death row that could put executions on hold.
The drug, an anesthetic called sodium thiopental, has become so scarce over the past year that a few states have had to postpone executions. Those delays could become widespread across the country in the coming months because of a decision last week by the sole U.S. manufacturer to stop producing it.
States have begun casting about for new suppliers or substitute drugs.
"We're wearing out our options," Mississippi Corrections Commissioner Chris Epps said.
Switching to another drug will take more than the stroke of a pen in most places: Several states have lengthy regulatory and review processes.
Moreover, any change in the drug used — or the supplier — could lead to lawsuits from inmates demanding proof that the substance will not cause suffering in violation of the constitutional ban on cruel and unusual punishment. Some inmates have already raised such arguments.
"Everything will be challenged in the courts," said Richard Dieter of the Death Penalty Information Center, which opposes capital punishment. "And some courts will demand proof and will delay executions until the effect is clear."
Sodium thiopental is a barbiturate, used primarily to anesthetize surgical patients and induce medical comas. Most states employ it as part of a three-drug cocktail; they use it to put inmates to sleep before administering pancuronium bromide, which paralyzes the muscles, and potassium chloride, which stops the heart. Usually 2 to 5 grams of sodium thiopental are used per execution.
The AP review found that some states are well-stocked. Nebraska has amassed 500 grams from an Indian company, and it doesn't expire until 2012. California, which has the nation's largest death row with 718 inmates and had to delay an execution last September in part because of the shortage of sodium thiopental, obtained from a British company 521 grams that won't expire until 2014.
Other states are in a more precarious position. Texas' supply of 118 grams expires in March, and the nation's busiest execution state has two executions set for February, one in May and one in July. Over the past decade, Texas has executed almost two dozen inmates a year on average.
Mississippi's cache of 12 grams and Missouri's 40-gram supply also expire in March. While neither state has an execution scheduled, Missouri's highest court is considering requests to set execution dates for nine inmates, and Mississippi has one inmate who has exhausted his appeals.
Any attempt to use expired sodium thiopental would almost certainly bring a challenge from death penalty opponents on the grounds that the drug might be too weak to spare the condemned inmate from the pain of the paralyzing and heart-stopping drugs that follow.
Seventeen states that use the drug have no supply at all: Colorado, Connecticut, Delaware, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Montana, Nevada, New Hampshire, North Carolina, Oregon, Utah, Washington and Wyoming. None of those states has an execution scheduled.
The federal government and several states, including Alabama, Arkansas, Florida, Illinois, Pennsylvania and Virginia, did not respond to the AP or refused to disclose details about their supply.
States don't have to look far for another option. Pentobarbital, a surgical sedative that is sometimes employed in assisted suicides and is commonly used to destroy dogs and cats, was adopted by Oklahoma last year as part of its three-drug combination and has been used for three executions. Ohio announced Tuesday it would become the first state to use pentobarbital all by itself to put inmates to death.
However, the use of pentobarbital in executions has yet to be reviewed by the U.S. Supreme Court, which last tackled the constitutionality of injection in 2008 when it approved the three-drug method.
In Kentucky, where the entire stockpile of sodium thiopental has expired, a switch requires an administrative process that typically lasts six months. Similar hurdles exist in California, Maryland and Nebraska.
Even states that require only a prison official sign off on a switch — including Texas, Ohio and Tennessee — could face a flurry of challenges.
"You can't just switch pentobarbital for sodium thiopental and proceed as if nothing has changed," said Ty Alper, the associate director of the death penalty clinic at the University of California-Berkeley. "There's likely to be litigation and courts will have to satisfy themselves that it will result in a humane execution."
The sodium-thiopental shortage became more serious when the lone U.S. manufacturer, Hospira Inc. of Lake Forest, Ill., announced it would no longer make the drug after authorities in Italy, where Hospira's factory is situated, demanded assurances the substance would not be used in executions.
Hospira is the only sodium-thiopental manufacturer approved by the Food and Drug Administration. And defense attorneys are sure to fight any attempt by states to deal with non-approved sources.
In fact, death row inmates in Arizona and Georgia unsuccessfully tried to halt their executions by questioning the quality and source of the sodium thiopental that the two states obtained in England before the British government effectively banned such exports in November.
Though he won a one-day delay, the Arizona inmate, Jeffrey Landrigan, was put to death Oct. 27 after the U.S. Supreme Court ruled 5-4 that there was no evidence the drug was unsafe.
"Speculation cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness and needless suffering,'" the court said.
In Georgia, Emmanuel Hammond's lawyers argued that the state was "using illegally imported drugs that bear the label of a manufacturer that has not existed since 2006 and that were obtained from a fly-by-night supplier operating from the back of a driving school in England." But a state judge said he could find no proof the drug was inferior, and Hammond went to his death on Tuesday.
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