Shortage of key drug puts executions in limbo

in The Kansas City Star, May 11, 2012

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Shortage of key drug puts executions in limbo

Key element of lethal injections is hard to obtain as producers fight its use for capital punishment.
The Kansas City Star

Years of complex legal wrangling could not derail the death penalty in Missouri.

But a nationwide shortage of a key drug used to execute prisoners has left the state unable to carry out executions now or in the foreseeable future.

Missouri is not alone.

Shortages of the drug, or others like it, are affecting every state that uses lethal injection to carry out its capital punishment sentences.

“It will reach the crisis point by the end of the year,” said Richard Dieter, executive director of the Death Penalty Information Center, based in Washington, D.C. “Maybe we’ll see a new drug emerge, but I’m not sure what that might be.”

Officials with the Missouri Department of Corrections did not respond to requests for comment on the department’s death penalty protocol.

But details about the state’s inability to procure new supplies of the drug in question were revealed in a ruling earlier this week by the 8th Circuit Court of Appeals in a challenge to Missouri’s execution protocol brought on behalf of 16 men sentenced to death.

“The DOC is unable to carry out the challenged protocol as written, and it appears unlikely it ever will,” the court noted in its opinion.

Because of that inability, the court ruled that the prisoners’ challenge was moot. The court ruled that if Missouri has to adopt a new protocol using a different drug, then ruling on the old protocol was pointless.

The most immediate beneficiary of the drug shortage is Michael Tisius, the convicted killer of two jailers in Randolph County who is scheduled to be put to death Aug. 3. He is the only Missouri inmate with a scheduled execution date.

According to the 8th Circuit’s opinion, the state has been unable to find a new source for the drug or for a possible substitute since shortly after it carried out its most recent execution in February 2011. That execution was done just 20 days before its “limited supply” of the drug expired.

The issue involves sodium thiopental — one of three drugs called for in Missouri’s execution protocol.

It is used to anesthetize the condemned prisoner before two other chemicals are injected that paralyze him and stop his breathing and heartbeat.

Shortages of thiopental began to crop up in 2010, according to Deborah Denno, a national expert on lethal injection issues and law professor at Fordham University in New York.

“It’s not by accident these drugs are hard to get,” Denno said. “There’s been a concerted effort by manufacturers who don’t want to be associated with this process.”

In early 2011, Hospira Inc., the only domestic supplier of the drug, announced it would no longer produce the product it marketed under the name Pentothal.

Hospira, which had previously said it did not condone use of the product in executions, said in a statement that it had intended to produce Pentothal at a plant in Italy, but Italian authorities informed the company they would not allow it to be used in executions.

The company said it was unable to guarantee that its wholesalers wouldn’t sell the drug to departments of corrections for use in executions.

“Based on this understanding, we cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment,” the company said in its statement. “Exposing our employees or facilities to liability is not a risk we are prepared to take.”

Some states attempted to find an alternative foreign source, but none had been approved by the Food and Drug Administration. One state sought a waiver to import the drug, but the request was rejected by the Drug Enforcement Agency, the 8th Circuit opinion noted.

Other states began to substitute another anesthetic, pentobarbital.

Dieter said pentobarbital has been used, either by itself or in combination with other drugs, in the last 45 executions in the United States.

But alarmed by that use, its Danish manufacturer, Lundbeck, announced last July that it was imposing restrictions on how pentobarbital was distributed to prevent its use in executions.

“Lundbeck adamantly opposes the distressing misuse of our product in capital punishment,” the company said in a statement.

On March 27, a federal court in Washington, D.C., ordered the FDA to prohibit any importation of sodium thiopental because it had never been approved by the FDA. The court ordered the FDA to contact every state that it believes has any foreign-manufactured thiopental and instruct them to surrender it to the FDA. It also permanently prohibited the future importation of the drug.

“That was a really key decision,” Denno said.

According to this week’s appeals court opinion, Missouri officials reported that they are “making efforts to obtain drugs of some sort” but “not necessarily (sodium) thiopental.” Missouri officials unsuccessfully tried to obtain pentobarbital last summer, the opinion states.

“Despite its efforts, the DOC has been unable to obtain sodium thiopental or a substitute for more than a year, and appellee (Missouri DOC) cannot provide this court with a time frame for resolving this issue,” the appeals court wrote.

The problem has not yet affected Kansas, where nine inmates have been sentenced to death, because the state has never had any execution drugs stockpiled, according to Jan Lunsford, spokesman for the Department of Corrections.

None of the state’s capital punishment prisoners has come close to reaching the point in the appeals process where an execution date has been set.

“When the issue comes up we’ll deal with it appropriately,” Lunsford said.

States are also facing the problem of expiration dates for whatever drugs they have on hand, Dieter said.

But because most departments of corrections rarely disclose details about their execution procedures unless they are forced to in litigation, Dieter said it’s difficult to get a precise feel for the quantities of the drugs that are still in the hands of the state officials.

Texas, the most prolific execution state, has indicated it has enough on hand for the rest of the year, while Oklahoma officials have said they only have enough left for one more execution, according to Dieter.

“States are looking,” he said. “I doubt they’ll be going back to the electric chair.”

Contact: Deborah Denno