POSTED: 1:30 a.m. HST, Aug 19, 2013
The decision by the Missouri Supreme Court to allow propofol, the same powerful anesthetic that caused the death of Michael Jackson, to be used in executions - coming at a time when Texas, Ohio, Arkansas and other states are scrambling to come up with a new drug for their own lethal injections - is raising new questions about how the death penalty will be carried out.
"The bottom line is no matter what drugs they come up with, despite every avenue these states have pursued, every drug they have investigated has met a dead end," said Deborah Denno, a professor at Fordham Law School who studies execution methods and the death penalty. "This affects every single execution in the country. It just stalls everything, stalls the process."
With manufacturers now refusing to supply corrections departments with the drugs they had been using for executions, some states, like Georgia, have been resorting to obtaining drugs from unregulated compounding pharmacies - specialty drugmakers - which death penalty opponents say lack the proper quality control. Other states, as they run low on their old stock of drugs and are unable to replace them, are turning to new, untried methods like propofol or simply announcing that they are searching for a solution.
In the beginning, it was relatively simple and uniform. Several dozen states adopted the three-drug cocktail for executions first used by Texas three decades ago - a sedative (usually sodium thiopental) was mixed with a paralytic agent (pancuronium bromide) followed by a drug inducing cardiac arrest (potassium chloride). The idea was to provide a quick, painless method to replace the electric chair, gas chamber and firing squad.
But a shortage of pancuronium bromide a few years ago led some states to switch to a single-drug method, often simply administering enough sodium thiopental to cause death. The manufacturer of that drug, however, the Illinois-based Hospira, stopped providing it to corrections departments after workers at its Italian plant, and European officials, objected to the use of the drug for executions.
Many state corrections departments switched to pentobarbital, another powerful sedative, in their three-drug cocktail. But when its manufacturer, the Danish-based Lundbeck, learned that its product was being used in death penalty cases, it refused to sell any more to corrections departments and insisted that its American distributors also refuse to supply the drug.
Then, just last month, a federal judge in Washington ruled that sodium thiopental could not be imported into the country at all, because it had never been approved by the federal Food and Drug Administration. (It had been introduced before such FDA approvals began.)
This has left states unsure of what to do when their stockpiles run out - use some other drug like propofol, buy versions of sodium thiopental or pentobarbital from an unregulated compounding pharmacy, or abandon lethal injections altogether and return to some other form of capital punishment.
"It's an artificially created problem," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty. "There is no difficulty in using a sedative such as pentobarbital. It's done every day in animal shelters throughout the country. But what we have is a conspiracy to choke off capital punishment by limiting the availability of drugs."
The issue is expected to come to a head soon. Both Texas, the state with the busiest death house, and Ohio have said they would introduce a new lethal injection protocol in the next couple of months. Officials in both states have said in court filings that they would run out of their stockpiles in September.
"Corrections departments often buy a year's supply of the drugs they use, but it has a shelf life and it's expiring," said Richard C. Dieter, the executive director of the Death Penalty Information Center. "I think we are about to have some new breakthroughs on what the states are using. A lot of them will probably follow whatever Texas decides to do."
On Wednesday, the Missouri Supreme Court decided to allow executions using propofol to move ahead in October and November. There is no question that it would kill, but since it has never been used in an execution, death penalty opponents say, there is no way to say how much pain might be involved or what dose should be administered.
Arkansas had announced that it would use pentobarbital in its executions, but when that drug became unavailable, the governor refused to schedule any more executions until the state came up with a substitute - which has not happened.
California also announced, in June, that it would abandon the use of a three-drug cocktail and is studying what to replace it with.
"This drug issue is a temporary problem that is entirely fixable," Scheidegger said. "It is not a long-term impediment to the resumption of capital punishment."
Death penalty opponents, however, feel that the rejection of one drug after another will inevitably limit capital punishment.
Executions in the United States reached their height in 1999, when 98 people were put to death.
Since then, there has been a slow, steady drop in both the number of executions and the number of people being given the death penalty - in part because the rapid growth of life-without-parole sentences has given prosecutors a powerful plea-bargaining tool.
There were 43 executions in the United States in 2012, Dieter said, and a slightly lower number - 30 to 40 - is expected this year.
At the same time, six states - Connecticut, Illinois, Maryland, New Jersey, New Mexico and New York - have voted to abandon the death penalty in the last six years.
Still, some 3,125 inmates were on death row in the United States as of January, including a handful in those states that have recently abandoned the death penalty. And advocates on both sides of the question say that public opinion polls continue to show strong public support for capital punishment.
"This issue of the drugs is just a way to stop things or slow them down," said Robert Blecker, a professor of criminal law at New York Law School and a death penalty supporter. "It's an abolitionist tactic to gum up the works. I know why they're doing it. From their perspective, every death delayed is a day in favor of abolition. It's just another tactic."