Lethal drugs a headache for US death penalty states

Yahoo – AFP, Sébastien Blanc, 4 Nov 2015

Signs against the death penalty are seen in front of the Supreme Court in

Washington on July 2, 2008 (AFP Photo/Nicholas Kamm)

Washington (AFP) - The US states that apply the death penalty are struggling to find ways to legally carry out the ultimate punishment due to both a shortage of lethal injection drugs and controversy over whether those drugs inflict tremendous pain on inmates.

From California to the Carolinas, the drugs shortfall is affecting most of the 31 states with the death penalty, and is contributing to the decline in the number of executions in the United States, which have dropped steadily since 1999.

The dilemma was highlighted Tuesday in the case of Missouri inmate Ernest Johnson, a 55-year-old convicted triple murderer with a brain tumor who was granted a last-minute temporary stay of execution by the Supreme Court.

A death penalty supporter rallies outside

the Georgia Diagnostic and Classification

Prison in Jackson, Georgia, on

September 21, 2011  (AFP Photo/

Erik S. Lesser)

Johnson's lawyers say the use in the execution of pentobarbital, which numbs the central nervous system including parts of the brain, will provoke excruciating pain, violating the US constitution's ban on "cruel and unusual punishment."

"The drugs have been challenged for a long time, ever since the late 1980s," said Deborah Denno, an expert on the death penalty and the director of the Neuroscience and Law Center at Fordham University School of Law in New York.

"They are challenged more now because the drug shortage started in around 2009," she told AFP.

Searching for lethal drugs

Since January 2014, a number of executions have been botched, sparking public outrage.

Oklahoma death row inmate Clayton Lockett took 40 minutes to die. In Ohio, Dennis McGuire took 25 minutes to die after being injected with an untried drug cocktail.

For years, pharmaceutical companies -- most of them based in Europe, where the death penalty has been abolished -- have refused to provide states with the necessary drugs, leading some to turn to suppliers not backed by US regulators.

"What we know is that states are skirting the law and dealing with less than reputable drug companies," said Dale Baich, an Arizona-based assistant federal public defender who represents prisoners on death row.

Some states, like Arizona and Nebraska, have reportedly tried to purchase the barbiturate sodium thiopental in India on the sly.

"The issue will continue as long as the states continue to be secret about the source of the drugs used in lethal injection executions," Baich said.

New drugs, wrong drugs

The revision by some states of their lethal injection protocols to reflect necessary changes in the drug cocktails due to the shortage have prompted accusations of slapdash, improvised procedures.

There have been reported incidents of overdoses, drug intolerance and mistakes in preparing the injections.

Last month, an autopsy report made public in Oklahoma showed that an inmate was killed using potassium acetate -- a drug not listed in the approved protocol -- instead of potassium chloride.

California is mired in a debate over whether a single-dose injection -- not a three-drug combination -- can be used.

A growing number of death row inmates are filing complaints in court, saying that certain drugs could cause inmates to suffer unduly.

A man wears an anti-death penalty shirt during a vigil against the death penalty

 in front of the US Supreme Court in Washington on June 29, 2013 (AFP

Photo/Nicholas Kamm)

The drug controversies have led governors and courts in a handful of states to impose a moratorium on executions until the issues are resolved.

Ohio has delayed all executions until 2017.

Full supply in Texas

Virginia had to go cap in hand to ask for the rare pentobarbital drug from Texas, the most active US death penalty state, in order to execute a convicted murderer.

"Texas seems to have a rather steady supply of a drug for reasons unknown," Denno explained, suggesting they are possibly coming from a compounding pharmacy, which are not as strictly regulated as traditional drug makers.

Last week, Florida executed convicted murderer Jerry Correll, who had benefited from a stay for several months due to questions over the use of midazolam, a sedative.

Several states have grown wary of this substance from the benzodiazepine class of drugs, even though the Supreme Court has approved its use in Oklahoma.

The stalemate has led some states to turn toward old methods -- Utah has approved the use of the firing squad if lethal injection drugs are unavailable, and Oklahoma -- before putting a hold on executions -- had approved the gas chamber.