Fordham Law

Drug shortage threatens to hamstring state's execution reform plans

Deborah Denno in The Daily Journal, August 23, 2013

By Hamed Aleaziz
Daily Journal Staff Writer

It's been more than seven years since California executed a death row inmate. But as the state looks to transition to a new lethal injection method amid court injunctions and other obstacles that have led it to scrap the existing process, another challenge - procuring the required drugs to put criminals to death - looms on the horizon.

In July, the state effectively threw the old method on the rubbish heap. Officials opted not to seek review of an appellate panel's decision that the existing protocol, which used a cocktail of three drugs, violated the Administrative Procedure Act, a state law mandating public comment and other requirements. Instead, the state said, it would pursue a different method that uses only a single drug.

The trouble is, the supply of pentobarbital - the main drug used by states with single-drug systems - is running dry. The problem stems from a 2011 decision by the injectable drug's longtime owner, Danish pharmaceutical company Lundbeck, that it would "deny distribution of pentobarbital to prisons in U.S. states currently carrying out the death penalty by lethal injection." According to media reports, Lundbeck has since sold the rights to the drug to Illinois-based Akorn Inc., which agreed to honor the distribution restrictions.

Other states using pentobarbital have recently struggled to get their hands on the drug. Earlier this month, Texas announced that its supply was set to expire in September, potentially leaving officials unable to conduct lethal injections. Such difficulties could mean a tumultuous road ahead for California.

"I don't know what California officials can do based on the solutions attempted by other states," said Deborah Denno, a professor at Fordham University Law School. "My current analysis of all death penalty states shows that there is no successful drug or combination of drugs available for execution, and all viable avenues are closed."

In short, she said, it's likely the death penalty will not be employed in California, at least not in the near future.

Other states in similar binds over supply have come up with creative solutions. South Dakota, for example, passed a law that allowed the names of suppliers of drugs used for execution to remain secret, potentially alleviating any public relations qualms for suppliers.

In California, however, there is no comparable secrecy law, and the state Public Records Act would make it challenging for officials to keep the name of the supplier confidential.

"In California, our Constitution says that people have the right to information concerning the conduct of state business," wrote Ana Zamora, a senior policy advocate at the ACLU of Northern California in an email, "and when the business [at] hand is executions, that offers a very compelling argument for transparency."

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which advocates a tough approach on crime, recommended that the state allow several drug options, making the protocol better able to withstand future supply issues.

"I think protocols need to be flexible enough to allow alternatives so you're not stuck with one particular drug," he said.

One solution could be to appoint a panel of experts to study, examine and propose a humane execution method that may or may not include lethal injection, said Denno at Fordham.

"Get a panel of experts together and have California - the governor - appoint a commission of experts, as this country did in 1888, to come up with a humane way of executing someone," she said. Such a panel would be made up of "people who have the kind of background and expertise to do this" and would "not delegate a really big responsibility to Department of Corrections, who are simply unable to meet that burden, that responsibility."

Legislative action could be another way to address the problem, Scheidegger said, explaining that Congress could move to help ease access to the drug.

"Extending existing prohibitions on restraints of trade to cover this situation is well within the authority of Congress," he said. "The resale restrictions in contracts are a restraint of trade. Forbidding restraints of trade is what antitrust law is all about."

Others, such as Richard Dieter, executive director of the Death Penalty Information Center, are doubtful Congress will be inclined to step in.

A return to methods previously employed, such as the gas chamber, also seems unlikely, Dieter said. That option has not been used by the state since the early 1990s. "There would have to be legislative changes to the present law, which only allows the gas chamber if an inmate chooses that method," he said. "Furthermore, a federal court found [California's] gas chamber unconstitutional just prior to the state's change to lethal injection. That ruling still stands, though moot."

Ultimately, Dieter said he believes that other states will muddle through and carry out executions for the foreseeable future either with drugs already in the supply chain or with alternate drugs.

Whatever the conclusion, he said, "it's going to be a long, expensive and uncertain path as to whether executions will resume in many places."