EDITORIALS: ​“Shortage of Key Drugs May Suspend Death Penalty in Missouri”

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 8^th 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, stl​to​day​.com, edi­to­r­i­al, May 11, 2012). See Lethal Injection. Read more Editorials. Listen to DPIC’s pod­cast on Lethal Injection.