Texas has 317 inmates on death row, but only enough of a key lethal injection drug to execute two of them. Ohio has just one dose of the drug left.
A nationwide shortage of sodium thiopental, an anesthetic that is part of the three-drug cocktail used in lethal injections, has thrown capital punishment in the United States into disarray, delaying executions and forcing the change of execution protocols in several states.
Last month, Hospira—the sole U.S. company approved to manufacture the drug—announced it will no longer produce sodium thiopental. This move followed a global campaign by death penalty opponents and pressure by Italian government officials after the company sought to shift production of the drug to an Italian plant.
The shortage of sodium thiopental has forced the 35 states using lethal injection to scramble for any remaining stock and to explore alternatives.
“Many states will have to change their method of execution, which means regulatory changes that have to be approved and lengthy court challenges,” says Richard Dieter, executive director of the Death Penalty Information Center. “In many states, this could take months, if not years, delaying executions.”
Some states—including California, Arizona and Nebraska—were able to obtain the drug from suppliers in England and India. The British government has since banned such shipments. A class-action lawsuit against the Food and Drug Administration’s decision to allow the importation of the drug into the country without adequate inspection or quality checks is pending. Death penalty opponents have raised questions about the quality of the drugs, arguing that if the drugs were expired or otherwise failed to work effectively, inmates could suffer significant pain, violating the ban on cruel and unusual punishment.
Whether executions will have to be delayed depends largely on the ability of states to make changes to their lethal injection protocols without legislative or regulatory changes.
In some states, switching to a new drug protocol is easily done. For an execution in December, Oklahoma replaced sodium thiopental with pentobarbital, a drug commonly used to euthanize animals. It is believed to be the first time the drug was used in a lethal injection. Ohio plans to do away the three-drug cocktail altogether..Beginning in March, the state will use a single dose of pentobarbital, becoming the first state to use the drug alone. This protocol is untested and many states are watching Ohio before changing their own protocols.
Tennessee is considering such a drug switch, which would not take long for the state to implement. Dorinda Carter, spokeswoman for the Tennessee Department of Correction, said such a change does not require new legislation and could be done after a departmental review.
However, other states have long regulatory and review processes. In Maryland, for instance, the current protocol under review has been withdrawn because changes will be so substantial that the rules will have to be completely revised.
“Our current proposed regulations have been withdrawn, so the process for writing new proposed regulations starts again. There is no set timetable for that process," said Rick Binetti, a spokesman for the state Department of Public Safety and Correctional Services,
Dieter explained that many other states face a lengthy regulatory process, including California and Kentucky. In addition, any change in the drug or its supplier will likely lead to lawsuits from inmates facing execution. Dieter said he expects there will be legal challenges in almost every state currently using sodium thiopental.
“Lawyers will challenge the use of new drug protocols or drugs that are imported from overseas,” he said “Either way, there is enough of a change to warrant a challenge.”
In the meantime, states continue to seek additional sources of sodium thiopental. On Jan. 25, 13 states asked the U.S. Department of Justice for help in identifying sources for the scarce drug or by making federal supplies available to states.