Problems with drugs delaying capital punishment.
Problems with lethal injection drugs create delays.
Despite a Supreme Court ruling allowing a controversial drug to be used for lethal injections in Oklahoma, death-penalty states are finding it harder to carry out executions as they struggle to obtain and properly use limited supplies of ever-changing combinations of suitable drugs.
Prison officials in Texas and Virginia have improvised a solution by trading drugs used in lethal injections. Both Ohio and Nebraska have sought to buy a drug no longer available in the United States from overseas, only to be told by the federal Food and Drug Administration that importing the drug is illegal.
Executions in Mississippi have been postponed for months over a federal lawsuit challenging the state’s three-drug protocol. The delay will stretch into next year, with a trial scheduled in July 2016.
And in Montana on Tuesday, a judge blocked the state from carrying out executions, ruling that one of the two drugs it planned to use did not comply with the state law governing lethal injections. The only way Montana can resume executions with that drug, the judge said, is by having the state Legislature modify the law.
“Over time, lethal injection has become only more problematic and chaotic,” said Deborah W. Denno, a professor at Fordham Law School and an expert on lethal injections.
Oklahoma last week halted the execution of Richard E. Glossip, who was part of the challenge the Supreme Court had turned down, after officials realized two hours before it was to take place that the state’s supplier had sent prison officials the wrong drug.
The error, which led to a stay of all executions, had occurred at least once before. Oklahoma executed an inmate in January using that wrong drug — potassium acetate instead of the potassium chloride that is required under the state’s protocol. The use of potassium acetate in January is part of an investigation the Oklahoma attorney general is conducting in the aftermath of Glossip’s postponed execution.
“Until we have complete confidence in the system, we will delay any further executions,” Gov. Mary Fallin said.
In June, the Supreme Court ruled against Glossip and two other Oklahoma death-row inmates who argued that one of the drugs in the state’s three-drug protocol — midazolam, a short-acting sedative — was unreliable. But the court’s decision has had little impact, experts said. Several states appear to be reluctant to use midazolam in part because of its involvement in three high-profile executions in which prisoners appeared to suffer last year, in Oklahoma, Ohio and Arizona.
The apprehension over midazolam, combined with a drug shortage caused by manufacturers’ ceasing production or limiting how drugs can be used, has made it increasingly difficult for states to obtain drugs and carry out executions without delays, mistakes or controversies.
The scramble for drugs has caused some states to embrace or consider more unusual or more antiquated ways of putting inmates to death.
In 2014, Tennessee authorized prison officials to use the electric chair if lethal-injection drugs were unavailable. Gov. Gary R. Herbert of Utah signed a bill into law in March approving firing squads when drugs cannot be obtained. In April, Oklahoma made nitrogen gas its new backup method. In Louisiana, where executions have been postponed following a federal lawsuit over its lethal-injection system, prison officials recommended in a report in February that nitrogen gas be adopted as an alternative method, through the use of a mask or other device but not a gas chamber.
Lethal injections in many of the nation’s 31 death-penalty states have become increasingly varied in the type, combination and source of drugs used. In January 2014, six executions were conducted in six states using four different protocols, according to the Death Penalty Information Center, a group that opposes capital punishment.
In one of those cases, two drugs — midazolam and hydromorphone — were used together for the first time for an execution in the United States. The Ohio inmate who was injected with them in January 2014, Dennis McGuire, appeared to struggle for several minutes.
One year later, Ohio officials said they would no longer use the twodrug combination they had used on McGuire and postponed all executions planned for 2015 until they obtained new drugs. As it prepares to resume executions in 2016, Ohio’s search for new drugs earned it a warning from federal authorities, after prison officials explored buying a sedative, sodium thiopental, from overseas. In June, an FDA official told the state in a letter that “there is no FDA-approved application for sodium thiopental, and it is illegal to import an unapproved new drug into the United States.”
Ohio officials declined to answer questions about the letter.
Despite the Supreme Court’s ruling allowing the use of midazolam, Florida has been blocked for months in using it as part of its three-drug method because of legal challenges over midazolam raised by a death-row inmate, Jerry Correll. The Florida Supreme Court ruled against him Friday.