Execution drug supply is running low, and states are looking for lethal backup plans

Posted at 11:47 AM, Mar 20, 2015
and last updated 2015-03-21 18:03:08-04

A bulky wooden chair outfitted with leather straps sits in Huntsville’s Texas Prison Museum, still fully functional, but unused in its faux death chamber. But before its retirement in 1964 this electric chair, dubbed Old Sparky, carried out 361 executions. For visitors, the chair stands as an illustration of how far Texas has advanced in capital punishment – a relic of what some consider past barbarism. But with a dwindling supply of lethal injection drugs in the U.S., states have started looking to bygone execution methods – not unlike Old Sparky – as a backup plan.

If Texas goes through with Kent Sprouse’s execution April 9, it will have exhausted its last dose of pentobarbital, the lethal injection drug it has used since 2012. That leaves the state, which has the macabre distinction of being the nation’s leading executioner, with three more April executions and no plan as to how to carry them out. Jason Clark, a spokesperson with the Texas Department of Criminal Justice, said the department is “exploring all options, including the continued use of the pentobarbital or alternate drugs.”

But could “all options” also include plugging Old Sparky back in?

That’s what officials in other states are considering. This month, Alabama's House of Representatives voted on a bill that, in case of a continued drug shortage, would bring back the electric chair. And in May, the Tennessee Supreme Court will hear a challenge to the state’s attempt to bring back the electric chair.

And if the electric chair sounds antiquated in this age of lethal injection, just consider the firing squad.

The Utah state legislature passed a bill this month that would reauthorize death by a firing squad if lethal injection drugs cannot be secured 30 days before an inmates’ scheduled execution. Rep. Paul Ray, the bill’s sponsor, decided to draft it after he learned last year that Utah had no execution drugs.

“It became apparent at that time that we needed a plan B just in case,” Ray said. “We’re still two or three years out on our next execution, but my thought was, ‘Well, let’s get something in place now. Just in case we need it, it’ll be there.’”

Legislation to allow firing squads in Arkansas also was introduced this year, along with a failed attempt in Wyoming. Oklahoma, meanwhile, is toying with a new take on the gas chamber. The Oklahoma House passed a bill earlier in March that would allow nitrogen chamber executions. Like its predecessor, nitrogen chambers would involve an airtight chamber, but instead of filling it with poison gas, the nitrogen would cause death by asphyxiation.

But it isn’t some nostalgia for brutality fueling this wave of states seemingly backpedaling on progress. It’s increasingly becoming a necessity. A recent GAO report shows that the U.S. faces a widespread drug shortage that started in 2007.

As the stock of drugs began to dwindle, few domestic suppliers were able to to keep up with the deadly demand. So states turned to European pharmacies. It turned out to be a temporary fix, as one by one Italian, German and Dutch suppliers cut off drugs supplies when they discovered they were being used to kill. The companies’ bans reflect a larger cultural difference – the U.S. is the only Western country that still carries out executions.

Keeping dates with death

But if the aim was to stymie executions, the plan looks like it backfired.

“Our hand has kind of been forced without the availability of drugs,” Ray said. “There’s still support for the death penalty, so you have to have a way to do that.”

He continued, “The interesting thing is that these companies in Europe are opposed to the death penalty so they withhold these drugs. They seem to be opposed to the firing squad over there. But they’re the reason we’re using the firing squad. They need to understand that they might not like what we’re doing, but they’re the reason we’re doing it.”

Most of the state legislation, however, is nothing but the sketching of a backup plan. Still, with the clock ticking for 2015’s roster of death row inmates, 10 across the country and six in the state, Texas needs a solution – fast. Even for trigger-happy Texas, it’s unlikely that there will be a sudden shift to another form of execution – or at least not in the next month. Meghan Ryan, a law professor at Southern Methodist University, pointed out that even if states dodge the problems that lethal injections pose, new methods would be open to judicial scrutiny.

“The problem with going to other methods of execution is that there are potentially constitutional concerns about that, just like there are constitutional concerns about what states are doing now in experimenting with different lethal injection cocktails,” Ryan said. “We’re sort of in a state of uncertainty regarding executions in general.”

Ryan said that the state push for lethal injection alternatives could hit a snag under the Eighth Amendment’s bar on cruel and unusual punishment. It is unclear if bringing old techniques out of retirement when lethal injections exist would hold up in court.

“The idea that punishments ought to be evolving toward more humane methods of execution suggests that moving backward, such as toward the electric chair or firing squad, might be questionable or possibly unconstitutional,” Ryan said.

Texas does have a stockpile of the sedative midazolam that it could adopt into its protocol with the stroke of a pen. But the controversial drug, which replaced the depleted sodium thiopental in some states’ drug cocktails, has been used in three botched executions. Most notably, it was part of the horrific death of Oklahoma inmate Clayton Lockett last April, which drew worldwide attention to lethal injection practices.

“Every Department of Corrections in the country is looking at all of this,” said Deborah Denno, a law professor at Fordham University and expert on lethal injections. “They’re very aware that if they do anything wrong, and they’re so capable of it, that this is going to set into motion a series of questions about this entire process.”

And if midazolam’s link to botched executions wasn’t enough, there’s the upcoming Supreme Court case brought by three Oklahoma death row inmates that centers on the drug. The case, which is set to be argued April 29, has already led judges in Florida and Oklahoma to halt executions until the court reaches a decision. So for now, it seems that midazolam’s reputation will keep Texas – or any other state – from touching its stash.

“My sense is that they’re probably scrambling to find a compounding pharmacy in this country that would make more pentobarbital for them. That would be my first guess,” Denno said.  

The long-term solution to lethal injection drug shortages will take time and likely many court battles to sort out. But it’s time that Texas, at least, doesn’t have – unless it wants to do what Ohio did when it halted executions indefinitely after one was botched in 2014. The chances of that in the Lone Star state? Slim, especially since there have been no efforts for the state to take a break from its busy schedule.

“Knowing the history of Texas and other states that are advocates of capital punishment, I think they will do what they can to try to keep executions in line and on schedule,” Ryan said.

Much like the rest of the country, the next steps for Texas are unclear. The Supreme Court’s guidance on midazolam usage could clear pathways for states to use the drug. On the flip side, it could completely bar it, sending the U.S. on another pharmaceutical scramble. Or perhaps the frustration of switching from one drug to another, each step taken with unsure footing, will lead states to alternatives like in Utah.

Meanwhile, Old Sparky is still on display.

[Also by Abby Johnston: First the Koch brothers bought politics, now it’s March Madness]

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