Despite a Supreme Court ruling allowing a controversial drug to be used for lethal injections in Oklahoma, death-penalty states are finding it harder to carry out executions as they struggle to obtain and properly use limited supplies of ever-changing combinations of lethal injection drugs.
Prison officials in Texas and Virginia have improvised a short-term solution by trading drugs for lethal injections. Both Ohio and Nebraska have sought to buy a drug no longer available in the United States from overseas only to be told by the federal Food and Drug Administration that importing the drug is illegal.
Executions in Mississippi have been postponed for months over a federal lawsuit challenging the state's 3-drug protocol. The delay will stretch into next year, with a trial scheduled in July 2016. And in Montana on Tuesday, a judge blocked the state from carrying out executions, ruling that 1 of the 2 drugs it planned to use did not comply with the state law governing lethal injections. The only way Montana can resume executions with that drug, the judge said, is by having the State Legislature modify the law.
"Over time lethal injection has become only more problematic and chaotic," said Deborah W. Denno, a professor at Fordham Law School and an expert on lethal injections.
In June, the Supreme Court ruled against Mr. Glossip and 2 other Oklahoma death-row inmates who argued that 1 of the drugs in the state's 3-drug protocol - midazolam, a short-acting sedative - was unreliable. But the court's decision has had little impact, experts said. Several states appear to be reluctant to use midazolam in part because of its involvement in 3 high-profile executions in which prisoners appeared to suffer last year, in Oklahoma, Ohio and Arizona.
The apprehension over midazolam, combined with a drug shortage caused by manufacturers' ceasing production or limiting how drugs can be used, has made it increasingly difficult for states to obtain drugs and carry out executions without delays, mistakes or controversies, and without pushing the legal limits of how drugs can be obtained.
The scramble for drugs has caused some states to embrace or consider more unusual or more antiquated ways of putting inmates to death.
In 2014, Tennessee authorized prison officials to use the electric chair if lethal-injection drugs were unavailable. Gov. Gary R. Herbert of Utah signed a bill into law in March approving firing squads when drugs cannot be obtained. In April, Oklahoma made nitrogen gas its new backup method. In Louisiana, where executions have been postponed following a federal lawsuit over its lethal-injection system, prison officials recommended in a report in February that nitrogen gas be adopted as an alternative method, through the use of a mask or other device but not a gas chamber.
Lethal injections in many of the nation's 31 death-penalty states have become increasingly varied in the type, combination and source of drugs used. The 6 executions in 6 states in January 2014 were conducted using 4 different protocols, according to the Death Penalty Information Center, a group that opposes capital punishment.
1 year later, Ohio officials said they would no longer use the 2-drug combination they had used on Mr. McGuire and postponed all executions planned for 2015 until they obtained new drugs. As it prepares to resume executions in 2016, Ohio's search for new drugs earned it a warning from federal authorities, after prison officials explored buying a sedative, sodium thiopental, from overseas. In June, an Food and Drug Administration official told the state in a letter that "there is no F.D.A.-approved application for sodium thiopental, and it is illegal to import an unapproved new drug into the United States."
Ohio officials declined to answer questions about the letter. JoEllen Smith, a spokeswoman for the state's Department of Rehabilitation and Correction, said the agency "continues to seek all legal means to obtain the drugs necessary to carry out court-ordered executions."
In Nebraska, where proponents of the death penalty have been fighting a vote in May by state legislators to abolish capital punishment, prison officials ordered lethal-injection drugs from India but said they had not received them. A spokesman for the Nebraska Department of Correctional Services said hundreds of vials and capsules of sodium thiopental and pancuronium bromide were ordered at a cost of more than $50,000.
Despite the Supreme Court's ruling allowing the use of midazolam, Florida has been blocked for months in using it as part of its 3-drug method because of legal challenges over midazolam raised by a death-row inmate, Jerry Correll. The Florida Supreme Court ruled against him on Friday.
In Texas, the execution of Michael Yowell in 2013 marked the 1st time the state had used a sedative known as pentobarbital that was made not by a drug manufacturer but by a compounding pharmacy. Such pharmacies are largely unregulated by the F.D.A. Texas changed its protocol from a 3-drug cocktail to a single drug after its stock of one of the drugs expired and it was unable to obtain a new shipment.
Virginia found itself in a similar situation as it prepared to execute
Alfredo R. Prieto last week for the murders of a Virginia couple in 1988. Virginia uses a 3-drug combination that includes midazolam. The state's stock of midazolam was set to expire, and officials were unable to obtain additional supplies, according to court documents. Virginia wanted another sedative, pentobarbital, and turned to Texas for help.
Texas prison officials donated 3 vials of pentobarbital to the Virginia Department of Corrections for Mr. Prieto's execution, and 2 Virginia prison employees traveled to Texas in late August to bring the vials to Virginia, according to court papers. Texas was returning a favor: In 2013, Texas officials facing a shortage of pentobarbital were given the drug by Virginia.
"Even if the transactions between states do not comply with law, there is no recourse for death-sentenced prisoners," said Megan McCracken, a lethal-injection expert with the Death Penalty Clinic at the University of California, Berkeley, School of Law. "Over the years, we have seen states obtain drugs for execution in ways that clearly do not comply with legal and regulatory frameworks."
A spokesman for the Texas Department of Criminal Justice said the supply of pentobarbital given to Virginia in August was legally purchased from a compounding pharmacy and tested for potency and purity. He said Texas law prohibited the agency from disclosing the supplier's identity.
Lawyers for Mr. Prieto questioned the efficacy of the drug. Virginia officials argued that Texas has used compounded pentobarbital successfully in 24 executions in 2 years. A federal judge sided with Virginia, and allowed Mr. Prieto's execution to proceed last week.
Source: New York Times, October 8, 2015
