Justices not convinced by arguments to delay execution

Deborah Denno in USA Today, October 27, 2010

Media Source

By Joan Biskupic and Kevin Johnson, USA TODAY

WASHINGTON — In the Supreme Court's divided order allowing the execution of an Arizona murderer, the justices spurned arguments about the safety of a lethal injection mix and appear to have allowed the first U.S. execution using a drug from a foreign country.
Prison officials face a nationwide shortage of sodium thiopental, one of the three drugs used in lethal injections, and Tuesday night's execution of Jeffrey Landrigan came amid lingering questions over the drug Arizona obtained from Great Britain.

U.S. District Court Judge Roslyn Silver had ordered Arizona to postpone the execution, finding state officials had failed to answer concerns that the sodium thiopental from an unnamed manufacturer could be contaminated or otherwise counterfeit. A U.S. appeals court upheld her order.

Late Tuesday, however, the high court reversed the lower courts by a 5-4 vote, with the conservative majority in control and liberals dissenting.

"There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe," the majority said in the order joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.

Dissenting were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and newest Justice Elena Kagan. They sought to postpone the execution and uphold Silver's order for more information on the disputed drug.

Arizona Chief Deputy Attorney General Tim Nelson said Wednesday it was the first time Arizona had to use a foreign drug. He also said it came from "a reputable source" and that officials believe it's safe.

Other lawyers who follow capital punishment said it appeared to be the first time any state relied on an overseas drug maker.

"This is the first time that we've been aware of that this drug has been imported," said Fordham University law professor Deborah Denno, an expert on capital punishment law.

A nationwide shortage of sodium thiopental, the so-called knock-out drug that is one of the three parts of the common lethal injection mix, has threatened to block executions in Oklahoma and Kentucky. New supplies are not likely to be available until 2011.

In Texas, which operates the nation's busiest death chamber, Department of Criminal Justice spokesman Jason Clark says the state has an adequate supply of the drug to carry out its one remaining execution this year Dec. 1 and its next one Jan. 11, 2011.

Landrigan had been on death row for two decades. In 1989, he escaped from an Oklahoma prison and killed a man in Arizona.

The high court's action came at 10 p.m. ET Tuesday. He was executed about three hours later.