Fordham Law

States reluctant to switch from three-drug ‘cocktail’ for executions

Professor Deborah Denno in The Kansas City Star, January 03, 2010

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The Kansas City Star

After a failed execution in September, the state of Ohio may have revolutionized capital punishment in America when it put a different inmate to death last month.

It executed Kenneth Biros on Dec. 8 with a single drug, marking the first time in the United States that a lethal injection was not done with a three-drug “cocktail” that has been the subject of numerous legal challenges in recent years.

Missouri and Kansas prison officials say they have no immediate plans to change their protocols, which employ the three-drug method. But death penalty experts think it’s highly likely that other states will follow Ohio’s lead.

“I had wondered for years why one drug wasn’t used,” said death penalty proponent Dudley Sharp. “There was some speculative downsides, all of which were, easily, overcome.”

Critics of the three-drug method repeatedly have suggested using just one strong sedative. That way, executioners would avoid the possibility of a condemned person suffering excruciating pain during the three-drug process, which is used in most capital punishment states and by the federal government.

In that method, a sedative is injected first to render the condemned person unconscious. A second drug paralyzes muscles. The final drug induces cardiac arrest.

But if the initial anesthetic is injected incorrectly or in insufficient strength, the inmate can suffer agonizing pain from the next two drugs and be unable to cry out or show physical reaction because of the paralytic, experts say.

Litigation over that possibility of “cruel and unusual punishment” has halted and delayed executions across the country, including in Missouri, and has reached the U.S. Supreme Court.

Eliminating the two most “problematic” drugs was a good step that should be applauded, said death penalty expert Deborah Denno, a professor at the Fordham University School of Law. But, she said, “it’s not just about the drugs.”

It took executioners about 30 minutes and several failed attempts before they successfully inserted an IV line in Biros’ vein, she said. And the state’s backup plan involved injecting two drugs “never injected into a human being, ever, in an execution” directly into muscle tissue, she said.

Experts have said that the sedative dosage used as the first step in the three-drug method was more than enough to kill a person. The main drawback, they said, to using only one drug was that it would take much longer than the three-drug method.

But Biros succumbed in about 10 minutes, about how long it’s taken for inmates to die under the more established method.

Missouri’s lethal injection protocol has weathered a number of challenges, some regarding the three-drug method and some regarding the competency and training of execution personnel. Last year, the state carried out its first execution since 2005. Missouri has 50 death row inmates.

Kansas, which has 10 death row inmates, has not carried out an execution since adopting lethal injection in 1994.

Ohio turned to the new method after the attempted execution of Romell Broom in September was called off — after executioners stuck him nearly 20 times over two hours without being able to find a suitable vein.

If other states decide to follow Ohio’s lead, it likely will not happen before a more thorough analysis of the method and its possible drawbacks, said Richard Dieter, executive director of the Death Penalty Information Center.

Despite the occasional glitches, Dieter said, the three-drug method has been used in more than 1,000 executions.

The three-drug method has been found constitutional by the U.S. Supreme Court, and many states may be reluctant to switch to a method that has not faced the same scrutiny.

Yet states always are watching what other states do, Denno said.

“I think with time, other states may begin to follow Ohio,” she said.