Death Penalty Drug Shortage and the Resulting Controversy

Over the past year, many of the 34 remaining states supporting capital punishment through lethal injection have been scrambling to reestablish their supply of the lethal injection cocktail ingredient sodium thiopental (sodium pentothal), or to establish a constitutionally allowed substitute, in order to proceed with their scheduled executions.

The death drug’s sole American distributor and manufacturer, Hospira, put production of sodium thiopental on hold during 2009 after experiencing production issues at its North Carolina plant. In 2010, the production freeze continued, with Hospira citing a shortage of necessary ingredient resources. Interestingly, the continued hiatus in production effectively stayed executions in several of the 33 states that used the drug as their primary method of execution, as the states did not have adequate stockpiles of the drug to fall back on.

However, these states are now facing an even greater challenge in procuring the drug, or even a constitutional equivalent, due to Hospira’s total and indefinite shutdown of its only remaining sodium thiopental production facility located in Italy.

Although Hospira had publicly denounced the use of its sodium thiopental product by government bodies for the purposes of capital punishment, the company’s complete shutdown overseas was not entirely voluntary. The Illinois-based distributor was warned by Italian officials that the company and its employees were running afoul of the Italian constitution, which prohibits capital punishment, by not ensuring that the Italian-made thiopental would not be used in lethal injections back in the United States. Hospira, recognizing the challenge of enforcing such a guarantee and the potential for its employees to be held liable, ultimately decided to exit the thiopental market.

Left with few outs and a dried up sodium thiopental supply, states like Oklahoma, Texas and Ohio have turned to pentobarbital, a drug used to euthanize animals, as a replacement for sodium pentothal. But the decision to use an alternative drug comes at the cost of a lengthy regulatory review process, however, and even after such approval, complications and criticism can amount. Pentobarbital has now been used both as part of the common three-drug lethal injection medley used by a majority of capital punishment states, as well as on its own in a single massive dosage.

However, although it has been adopted by multiple jurisdictions, the sodium thiopental substitute is stirring up controversy as of late. Following in the footsteps of its Hospira-made predecessor, pentobarbital is becoming increasingly harder to come by due to manufacturer restrictions on distribution to purchasers wishing to use the drug for capital punishment. As of July, 2011, Lundbeck, a Copenhagen-based maker of a pentobarbital product named Nembutal, said it would stop selling its product to U.S. prisons that have turned to the drug for lethal injections. It plans to do so through increased control over limited distribution channels.

The expected pentobarbital shortage couldn’t come at a worse time for lethal injection advocates. Just last month, a reportedly œbotched execution took place during the Georgia execution of Roy Blankenship “ the state’s first execution performed by administering pentobarbital. The Associated Press noted that observers could see Blankenship jerking his head, lurching toward his right arm, head up, eyes open and mouthing inaudible words. The prisoner appeared to experience a great deal of pain, something that could reignite claims that lethal injection constitutes cruel and unusual punishment.

Alabama, Arizona, Mississippi, Ohio, Oklahoma, Texas, and South Carolina have already used pentobarbital in place of sodium thiopental during their executions in the first half of 2011. It is unclear what will happen if and when pentobarbital falls into short supply or is used in any other œbotched executions.

One thing is, however, certain: the debate on lethal injection, the drugs used, and capital punishment as a whole will continue on with no foreseeable end in sight.