DEATH TAKES a HOLIDAY: Executions, Nationwide, Delayed by Shortage of Execution Drug

On Thursday, December 16th, Oklahoma prison officials executed John David Duty using a sedative normally used to euthanize animals. The 58-year-old prisoner was pronounced dead at 6:18 p.m in Mcalester, Oklahoma. at the Oklahoma State Penitentiary. The drug of choice used to put down Mr. Duty, who was convicted of strangling his cellmate almost 10 years ago, was pentobarbital. He is believed to be the first person to have been executed using the drug that is primarily a sedative used on animals.

The use of the pentobarbital underscores a nationwide and, indeed, some say worldwide shortage of the drug normally used in executions, as portrayed in an episode of "The Good Wife" called "Nine Hours" that aired on December 14th (nevermind that "The Good Wife" is set in Illinois and Illinois no longer has the Death Penalty).

Most states use a three-drug cocktail. The first drug is a heavy-duty barbiturate, and the drug of choice has been sodium thiopental, more commonly known as sodium pentothol. The first drug is supposed to put the patient under, so that a second drug, a neuromuscular blocking agent that goes by the technical name pancuronium bromide (Pavlon), which is curare-derived. (Curare was used on the tips of blowdarts to paralyze victims in the jungles of South America.) The drug Pavulon paralyzes all muscles, but has no effect on awareness, cognition or sensation. In fact, the condemned man would be a bit like all those scary movie stories where the patient is paralyzed on the morgue table, but still alive, or, perhaps, like Michelle Pfeiffer in "What Lies Beneath," when Harrison Ford administered Michelle a dose of a similar paralyzing agent.

The third drug in the lethal "cocktail" is potassium chloride, which causes cardiac arrest by interfering with the rhythmic contractions of the heart, causing the heart to stop beating. Those opposed to the Death Penalty say that potassium chloride is extremely painful to the patient, as it activates nerve fibers in the veins. As one blog writer put it, "Far from producing rapid loss of consciousness and a humane death, this particular combination of chemicals chosen by the State of Florida (and many others) causes the inmate to suffer an excruciatingly painful, protracted death." (From Terry Lenamon's www.deathpenaltyblog.com).

It is true that some states (Ohio) use a massive dose of the first drug, the barbiturate, and, in fact, this is similar what happened recently in accidentally overdosing pop star Michael Jackson, who was using a dangerous doctor-administered anesthetic as a sleep aid. Although some states do use a single-drug method, the 9th Circuit Court of Appeals in California ruled against the single drug method for killing its prisoners on Death Row (California, after many years of not having the Death Penalty, reinstated it in 1977, and has executed 13 people since then).

One of the reasons that executions nationwide have been affected by the shortage of the first barbiturate, sodium thiopental, is that the drug's only producer, Hospira of Lake Forest, Illinois, could not secure one ingredient used in making the drug. There is also a genuine dismay on the part of Hospira that the sodium pentothol they manufacture is being used to kill people. They recently sent a letter to all 50 states, saying they "do not support the use of any of our products in capital punishment procedures" adding "We provide the products because they improve or save lives." Perhaps that is what Hospira would like the product to be used for, but the truth is that, once protocols are written up, state-by-state, for executions, those designated to carry them out are to use whatever drug is indicated, and, in most cases, that has been sodium pentothol. Protocols will have to be rewritten to be more inclusive of other methods, to cope with this recent shortage of sodium pentothol, but that takes time.

Only Texas, where "Old Sparky" operated for many years, has been relatively unaffected by the nationwide shortage. However, Texas refused to share any of their drug supply with the state's experiencing shortages or shelf life drug expiration problems. Among those states were Oklahoma, Kentucky (executions on hold), Arizona (looking for more sodium pentothol) and California, where the execution of Albert Greenwood Brown had to be stopped when the state had none of the drug on hand that had not expired.(Set to expire October 1st).

Even Stephen Colbert got into the act regarding the execution of Mr. Brown, doing a bit entitled "Tiny Triumphs" on "The Colbert Report." (See my Wall on Facebook at Connie Corcoran Wilson to watch the darkly funny clip). As the search for the appropriate drug to execute Mr. Brown went on, Arizona came to the rescue, loaning California 12 ounces of the drug, or, as Colbert put it, "a cup of death." Colbert called it "tonight's heartwarming news."

The California supply of sodium pentothol was set to expire on October 1st and Mr. Brown---who was convicted in 1980 of the abduction, rape and murder of a 15-year-old girl on her way home from school--was set to become the first convict executed in California in nearly six years. As Colbert reported (following a freedom-of-information act that released e-mails between the two prison systems), once Arizona agreed to loan California 12 ounces of the yellowish, hygroscopic powder so that they could carry out the execution of Mr. Brown, Scott Kernan, the Undersecretary of the California Department of Corrections wrote: "You guys are lifesavers!" He further wrote: "By (sic) you a beer next time I get that way." So, a courier was sent to Florence, Arizona to pick up the drug and deliver it to San Quentin.

But that was after Texas had rejected California's requests for assistance, and inquiries had gone out as far as Pakistan and England. (The drug was actually available in England, but the FDA stopped it at our borders, causing Colbert to say, "We wouldn't want the drug to NOT cause death.") After all the flap over getting the drug to execute Albert Greenwood Brown, the court stayed his execution and the state withdrew its execution warrant.

One interesting writer on the Death Penalty, in general, is long-time attorney Terry Lenamon on www.deathpenaltyblog.com, who argues using the 3-drug cocktail is not as "humane" as it's supposed to be. He cites Florida law (where he has practiced for 17 years) that says the execution of another is illegal for this reason: "foreseeable and unnecessary pain in the execution of an individual is forbidden by state (Florida) and Federal Constitutions"

According to legal expert Lenamon, there are 3 considerations when methodically killing the condemned:
1) The probable length of time the condemned might remain conscious
(2) the physical or psychological pain during the execution and
(3) the time it takes for death to occur. The time factor is what finally forced the gas chamber out of vogue (Remember Susan Hayworth's Oscar-winning performance in "I Want to Live"?). The electric chair has proven ghastly, and firing squads and hanging don't seem particularly humane, so the drug cocktail has become the preferred method even in states like Texas, but Lenamon cites Fierro v. Gomez, 865 F. Supp. 1387, 1413 (N.D. Cal 1944), affd, 77F.3d 301, 308 (9th Cir. 1996) and mentions that it was vacated on other grounds, 519 U.S. 918 (1996). [Sounds fairly impressive to a non-lawyer.]

Another blog entitled "Pro-Death Penalty.com", however had no such qualms about execution methods, as long as they worked in killing the condemned.

Will the nationwide shortage abate and prisoners move smoothly down the corridor to be injected with massive quantities of something? (actually 500 mg/2.57% kit (25 mg/mL), 500 mg of ST (sodium pentathol) powder plus 20 ml. of liquid).

It's unknown. Obviously the drug manufacturer would prefer that the states use something else. The Arizona State Attorney General---the self-same state that just lent California "a cup of death"---said he was "not overly optimistic about obtaining 2 of the 3 drugs used in executions, as they are in short supply." Ohio ran out of its single-drug method barbiturate in May, but got more of the barbiturate it uses. Julie Walburn in Ohio was quoted as saying, "We have no reason to be concerned for the executions for calendar year 2010," but calendar year 2011 is not far away. Michael Benge of Butler County was slated to go to his eternal reward on October 6th and Sidney Cornwell of Mahoning County was scheduled on November 16th, but what about after that? And Oklahoma? Apparently animal tranquilizers are filling the gap in Oklahoma, as of the execution of John David Duty.

Only Texas, which executes far more people than any other state and far more enthusiastically, said it was ready for 3 executions before the year's end, had plenty on hand (and, apparently, was planning on using all of it, without sharing with the other states.)

Otherwise, Death Takes a Holiday at this holiday season.