The St. Louis Post-Dispatch urged Missouri to end its death penalty as the system has ground to a halt because of controversies involving its method of execution. On May 8, a federal appeals court declined to rule on a challenge to the state’s lethal injection protocol because the Department of Corrections could no longer obtain one of the three drugs specified in the protocol. The U.S. Court of Appeals for the Eighth Circuit said, “The DOC is unable to carry out the challenged protocol as written, and it appears unlikely it ever will.” A new protocol will be needed. The drug shortage will almost surely halt executions in the state. The editorial called this recent turn of events “an ideal time for Missouri to follow the lead of 17 other states and forego capital punishment. It’s expensive and serves no deterrent effect. Its administration is always arbitrary and capricious. Missouri so botched its procedures in the mid-2000s that a federal judge suspended executions until the state fixed the problems. Only two men have been executed since 2005.” Read full editorial below.

Friday, May 11, 2012
Editorial: Shortage of key drugs may suspend death penalty in Missouri

Missouri’s bizarre recent history with its capital punishment procedures got more bizarre this week. A federal appeals court in St. Louis said Tuesday that there was no reason for it to rule on a challenge to the state’s lethal injection protocol because the Department of Corrections could no longer obtain one of the three drugs specified in the protocol.

“The DOC is unable to carry out the challenged protocol as written, and it appears unlikely it ever will,” wrote a three-judge panel of the 8th U.S. Court of Appeals.

Does that mean capital punishment is over in the state of Missouri? Probably not. The court noted that George A. Lombardi, the director of the Department of Corrections, has the authority to rewrite the execution protocol to allow the state to substitute a different drug in its lethal injection procedures.

Some of the 33 states that still have the death penalty are using a substitute drug in the three-drug sequence used in nearly all U.S. executions since the early 1980s. One state, Ohio, has used the substitute in a one-drug procedure. But now the substitute is hard to find, too.

The consternation arises because Hospira, Inc., of Lake Forest, Ill., the sole U.S. supplier of Pentothal, a trade name for sodium thiopental, stopped making it in 2010. For a few months, the firm imported the drug from a supplier in Italy, but that ceased in January 2011 because the Italian company wanted assurances that it would not be used in capital punishment.

Sodium thiopental is a barbiturate widely used as an general anesthetic in many parts of the world. In lethal injections, five grams of it were administered to bring on unconsciousness. A paralytic agent would then be administered, followed by potassium chloride, which would bring on cardiac arrest.

Challenges to the use of Pentothal, including one brought by 16 Missouri death row inmates in the case of Ringo v. Lombardi, argued that the drug sometimes failed to bring on deep unconsciousness. When the paralytic agent was administered, they argued, the condemned inmate would suffer in an unconstitutionally cruel and unusual manner.

Ohio solved that problem by going to a one-drug protocol, using Pentothal in a 2009 execution and switching to pentobarbital for a 2011 execution. Pentobarbital is used by veterinarians to euthanize animals and in Oregon for assisted suicide. Several other states have substituted pentobarbital for Pentothal in their three-drug protocols. Courts have upheld the substitution.

But H. Lundbeck, the Danish firm that distributes pentobarbital in the United States, has objected to its use for capital punishment. Already some state corrections departments, including Missouri’s, have been unable to acquire it. Should Missouri find a supplier, inmates will surely mount challenges.

Among Missouri’s 47 condemned men, the most immediate beneficiary of the drug shortages is Michael Tisius, 31, who faces an Aug. 3 execution date for the murders of two Randolph County jailers in 2000. His execution almost surely will be stayed.

This would be an ideal time for Missouri to follow the lead of 17 other states and forego capital punishment. It’s expensive and serves no deterrent effect. Its administration is always arbitrary and capricious. Missouri so botched its procedures in the mid-2000s that a federal judge suspended executions until the state fixed the problems. Only two men have been executed since 2005.

Enough already.

(“Editorial: Shortage of key drugs may suspend death penalty in Missouri,” St. Louis Post-Dispatch, stltoday.com, editorial, May 11, 2012). See Lethal Injection. Read more Editorials. Listen to DPIC’s podcast on Lethal Injection.

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