Anesthetic drug shortage sidelines lethal injections

By Jessie Halladay • jhalladay@courier-journal.com • August 27, 2010

A nationwide shortage of several anesthesia drugs has left Kentucky and several other states scrambling to find enough doses to carry out lethal injections — potentially delaying executions well into next year.

Kentucky announced this week that it would not be able to carry out two executions, despite pending death warrants, because the state only has enough sodium thiopental, also known as Pentothal, to perform a single lethal injection.

“We have reached out to some other states, but that has not been fruitful,” said J. Michael Brown, secretary of the Justice and Public Safety Cabinet. “We’ve had other states call us trying to find it.”

Oklahoma has also been forced to delay an execution after a federal judge ordered a hearing before the state could try to substitute a drug for its remaining dose of sodium thiopental, which corrections officials said “wasn’t at the quality we wanted.”

And Ohio prison officials have been closely watching the nationwide shortage after they feared they may not be able to carry out a lethal injection last spring because of limited supplies.

Hospira, based outside of Chicago, the sole U.S. manufacturer of sodium thiopental, says manufacturing problems have hindered production of the drug, though spokesman Dan Rosenberg declined to elaborate.

“We are working to get it back on the market as soon as possible,” Rosenberg said, adding that Hospira won’t have more of the drug available until sometime in the first quarter of 2011.

The lack of sodium thiopental developed after a shortage of a more commonly used anesthetic called Propofol, said Bona Benjamin with the American Society of Health-System Pharmacists.

That has prompted major disruptions for hospitals, doctors and patients, who have postponed some elective surgeries as a result.

Benjamin said with the shortage of Propofol, it didn’t take long to start seeing shortages in drugs that could be safely substituted.

“It just sort of trickled down where anesthesiologists are being very challenged right now,” he said.

Thirty-five of the 36 states that allow the death penalty use lethal injection — with nearly all using sodium thiopental as part of the lethal cocktail administered, according to the Death Penalty Information Center. Both Ohio and Washington use a one-drug protocol using the sodium thiopental.

In Kentucky, as in many states, the lethal-injection protocol includes a combination of sodium thiopental with pancuronium bromide and potassium chloride.

Kentucky has 9.5 grams of sodium thiopental available, according to Department of Corrections documents. Execution requires 3 grams, plus an additional 3 grams for backup injection.

Moreover, Kentucky’s dose of sodium thiopental expires in October.

Kentucky Corrections records show that there is also only enough pancuronium bromide in stock for one execution, but more is on order. That drug also shows up on the FDA’s drug shortage list, but is scheduled to be back to full production by October.

With only enough drug for one execution, Gov. Steve Beshear signed a warrant this week that sets an execution date of Sept. 16 for Gregory Wilson, who was sentenced in 1988 for the May 1987 murder and rape of Deborah Pooley.

Brown said he recommended scheduling Wilson first because his case is the oldest of the three death warrants. Warrants were also requested for Ralph Baze, who was convicted of killing a Powell County sheriff and deputy in 1992, and Robert Carl Foley, who was convicted in 1993 and 1994 of killing six people in two incidents.

Kentucky isn’t the only state where the shortage is having an impact.

In Oklahoma, a federal judge issued a stay of execution for death row inmate Jeffrey David Matthews, after the state proposed substituting another drug for sodium thiopental. Jerry Massie, a spokesman for Oklahoma Corrections, said officials there tested the dose available and found it “wasn’t of the quality we wanted.”

But the substitute drug prompted a challenge and the eventual stay.

While a hearing is pending, Massie said the corrections department has located a dose of sodium thiopental, but it is unclear how that would affect the stay. A second execution has been scheduled for October, but there is not enough of the drug for two, Massie said.

Ohio Corrections officials also use sodium thiopental in executions. In May, a prosecutor warned a federal judge that enough of the drug may not be available to execute Michael Beuke of Cincinnati. But the corrections department did find enough of a dose to carry out the lethal injection, which took place May 13.

Julie Walburn, a spokeswoman for Ohio Corrections, said so far the department has been able to find suppliers of the drug, but she said they are watching the nationwide shortage carefully.

Richard Dieter, executive director of the Death Penalty Information Center, said the impact of the drug shortage is another example of how the questions around lethal injection are far from resolved.

“We’re trying to map a medical procedure onto an execution process, and the fit has not been very well,” Dieter said. “You’re using the drug not for the purpose it was originally created.”

It’s unclear, Dieter said, how many states could be affected by the shortage.

“This is certainly a quirky phenomenon,” he said. “We’re left with this medical approach, but it has been fraught with problems.”

David Barron, who represents Ralph Baze, said he believes given the shortage of anesthetic drugs nationwide, “The chemicals should be used for medical procedures rather than to take a person’s life.”

Barron has filed additional challenges that could affect Baze’s execution, including a motion to reopen the case decided by the U.S. Supreme Court that led to Kentucky recertifying their lethal injection protocol. Barron asserts that since two states have begun using a single drug in their lethal-injection process, Kentucky should be compelled to use the same protocol.

Wilson’s lawyer, Jefferson County public defender Dan Goyette, said picking out one inmate for execution — and setting his execution so soon — “adds a new and disturbing dimension to the arbitrary and capricious application of the death penalty.”

Goyette noted that Wilson has several motions pending in Kenton Circuit Court and that he will seek a stay of execution until they can be decided “as required by statute.”

Goyette said that if the execution is not stayed, he will file a clemency petition with the governor.

Donald Vish, director of advocacy and education for Kentucky Coalition to Abolish the Death Penalty, expressed what he called “profound sorrow” for murder victim Deborah Pooley and said “we never want to lose sight of the pain endured by her family and friends.”

But he said to set an execution just because the chemicals needed to carry it out are about to expire “is an especially ugly dimension of a system that … seems guided more by the laws of chance than the laws of justice.”

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