Tennessee Judge Declares State's Execution Process Unconstitutional; Other States Confront Same Issue

On Nov.19, a Davidson County judge ruled that Tennessee’s lethal injection procedure was unconstitutional, possibly delaying the execution of Stephen Michael West and others on death row. Chancellor Claudia Bonnyman, who issued the ruling, said that the state’s lethal injection procedure “allows for death by suffocation while conscious,” because it did not specify a sufficient dosage for sodium thiopental, the first of three drugs used in lethal injections. In Baze v. Rees, the U.S. Supreme Court decided that Kentucky’s lethal injection method was constitutional, although the decision did not specifically address the amount of sodium thiopental used in executions, provided it was administered properly. Federal public defender Stephen Kissinger presented two medical experts who testified that autopsies performed on executed inmates showed that concentrations of two of the drugs used in lethal injections were too low to cause their intended effect. Medical experts found that levels of sodium thiopental (the first drug used) in all three autopsies were too low to cause unconsciousness and levels of potassium chloride (the final drug used) were not enough to stop the heart. UPDATE: Tennessee Supreme Court upheld the state’s execution procedure, allowing West’s execution date to be set for Nov. 30.

In other states: a federal court in Oklahoma approved the use of the anesthetic pentobarbital as the first of 3 drugs to be used in its executions. It would be used in place of sodium thiopental, which is in short supply. Oklahoma has an execution scheduled on Dec. 16. Pentobarbital has been used in the euthanasia of animals. In Texas, the Attorney General has ruled that the source of the state’s lethal injection drugs should be made public. Texas reportedly has sufficient quantities of sodium thiopental for 39 executions, but the supply has an expiration date in March 2011. In California, the state has so far refused to divulge its source of sodium thiopental. Arizona, which secured a supply of this drug around the same time as California, obtained the drug from overseas and carried out an execution. Litigation in the United Kingdom is seeking to block the exportation of drugs used in executions after it was reported that U.S. states were acquiring sodium thiopental from a British company. (Various news stories.)

In recent months, Hospira Inc., the sole U.S. manufacturer of sodium thiopental, announced it will not be able to produce a new supply until early 2011, due to a shortage of its active ingredients. Some states have been forced to halt or delay executions because their supplies of sodium thiopental were expiring soon.

(K. Hall, “TN judge strikes down lethal injection,” The Tennessean, November 20, 2010; N. Koppel, “Oklahoma Judge Okays Use of New Lethal Injection Drug,” Wall Street Journal, November 22, 2010). See Lethal Injection and U.S. Supreme Court.