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States face dwindling sources for lethal injection drugs.

When the state of Missouri on Nov. 20 executed Joseph Paul Franklin--a 63-year-old who targeted Jews and African-Americans in a late-1970s interstate killing spree--it used a single drug. A compounded version of pentobarbital ended Franklin's life in 10 minutes, with media witnesses reporting no apparent signs of pain.

In the past, Missouri, as did most death penalty states, used a three-drug process as standard protocol for its death row executions. But recent years have seen the mechanics of killing change, much of it attributed to the lack of access to the drugs needed to make the traditional pharmaceutical cocktail. With the new procedures come greater scrutiny and a lengthy list of questions: What is the drug? What is its source? Is it reliable? Is it humane?

"It's in a state of change," Richard Dieter, executive director of the Death Penalty Information Center, said of lethal injection executions. "And some states have not had an execution in six, seven years. Others have been able to go forward, but there are challenges out there that still may slow things down."

Currently, 32 states use the death penalty as well as the federal government and the military; more than 3,100 inmates remain on death row. Since 2000, the U.S. has averaged 54 executions a year, and 35 executions annually since 1976, when the Supreme Court reinstituted capital punishment after a four-year moratorium. At that time, states had sought an alternative to the electric chair or gas chamber. An Oklahoma coroner suggested the three-drug protocol: sodium thiopental, to put the inmate to sleep; pancuronium bromide, to induce paralysis; and potassium chloride, to quickly stop the heart and cause death.

Texas first used the procedure in 1982, and all death penalty states would eventually follow suit (Nebraska used the electric chair until 2009), with more than 1,000 additional executions using the method. The 2008 Baze v. Rees Supreme Court case upheld the use of the three-drug protocol. The availability of the drugs, all common to operating rooms and attainable through drug wholesalers, added to the widespread use. But problems arose as medical facilities sought more effective drugs, and the traditional supplies were depleted.

Changing opinions in the pharmaceutical industry particularly in Europe where the death penalty is abolished, also began to bottleneck lethal injections. Hospira, an Illinois-based pharmaceutical company and sole U.S. supplier of sodium thiopental, announced in January 2011 that it would cease the drug's production after Italy--where production was set to move--threatened to block exports if the drug ended up in capital punishment procedures. The decision upset anesthesiologists who still use it in patient care.

"In a way, we're in an international sanction. We're at the receiving end of what Europe considers to be a human rights issue," Dieter told NCR.

But the crisis for drugs hasn't stopped executions.

Instead, states revised protocols and sought other outlets to secure the drug, from companies in India to a London distributor operating out of a driving school. As the Federal Drug Administration clamped down on such unauthorized imports, states shifted to pentobarbital. Commonly used by veterinarians for animal euthanasia, the drug has become part of new three-drug or two-drug protocols, or is used as a single drug, the case in about a dozen states.

"Rather than seeing one formula that is the same across all the different states ... today we're seeing differences in terms of the drugs they're using, number of drugs that are used, and then also the different specifics in terms of the administration," said Megan McCracken, the Eighth Amendment resource counsel at University of California-Berkeley School of Law's Death Penalty Clinic.

The lack of cohesion has led inmates to challenge the drugs and processes on grounds of the Eighth Amendment's prohibition of cruel and unusual punishment. Appeals have locked onto the secrecy cloaking a number of executions, from what drug is used, to questions of its source, production, administration and the qualifications of those involved. McCracken noted that when states take legislative measures to conceal a drug's source or other specifics, that raises the question: "Why does this information need to be hidden?"

"[States] know when the name of that company becomes public, it's going to be examined and challenged and may want to back out of providing these drugs," Dieter said.

Much of the unknown relates to the compounding pharmacies some states have contracted to create the drugs. Typically a process for producing drugs for patients with special needs, compounding came under the spotlight when a nationwide meningitis outbreak traced back to injections prepared by a Massachusetts compounding pharmacy. As compounding pharmacies face greater sterility scrutiny, inmate advocates question whether lethal injections could pose similar unintended harm as compounding becomes more prevalent.

At November's end, the last supplies of Nembutal--the only FDA-approved version of pentobarbital, produced by a Dutch manufacturer that in 2011 restricted its distribution from death penalty states--expired, meaning departments of corrections can no longer use it in executions.

James Spencer, an assistant professor at Creighton University's School of Pharmacy and Health Professions in Omaha, Neb., said that while it is viewed as ethically unjustified to refuse dispersal of drugs that pose little risk of harm, other categories open themselves up to ethical discernment.

"Certainly if the drug is clearly associated with harm, there's a lot more support for conscientious objections," Spencer said.

In deciding their involvement in capital punishment. pharmacists should consider their personal feelings, he said, as well as state laws and ethical codes. At Creighton, a Jesuit university, they also examine the Catholic perspective on the death penalty: an option "when this is the only practicable way to defend the lives of human beings effectively against the aggressor" the catechism states.

It also advocates the intrinsic dignity of the person, Spencer said, regardless of their crimes: "And society has to balance maintaining that dignity ... along with protecting others."

While Spencer doesn't see the concerns about compounding pharmacies--that large-scale production may border on manufacturing without FDA oversight--reaching lethal injections (due to a lack of demand), others worry that without regulations the drugs lack the consistency needed to assure no additional suffering in the dying process.

"You could have an execution that appears to go just fine, but that does not mean that the next batch of pentobarbital will be the same," McCracken said.

The burden lies with the prisoner to show a procedure will cause undue or serious harm, a high standard to meet that has yet to see a final judgment go the prisoner's way. Still, the challenges have led in several instances to corrections departments altering the planned procedure to remove unnecessary risks and replace execution team members with more qualified individuals.

While few anticipate the current chaos ushering a return to more archaic methods, some see it as another problem with the death penalty that could lead states to determine it ultimately isn't worth it.

"It absorbs enormous amounts of court time and lawyers' time, and legislators having to keep changing the protocols," Dieter said. 'And no one looks particularly good through this process: states scrambling, calling up in the dark of night getting drugs from other places. It's just not a positive image."

"It seems to me that the more the public learns about the reality of capital punishment, the more that they see that it is a flawed and problematic enterprise," McCracken said.

Caption: --AP Photo/Amber Hunt The lethal injection chamber of the South Dakota State Penitentiary

[Brian Roewe is an NCR staff writer. His email address is]
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Title Annotation:PRO-LIFE
Author:Roewe, Brian
Publication:National Catholic Reporter
Geographic Code:1U4MO
Date:Jan 3, 2014
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