Will Europe Thwart Texas Executions?

Deborah Denno in The Texas Tribune, February 05, 2011

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A combination of market forces and European objections to the death penalty have left the nation’s busiest execution chamber with only enough of a key drug — sodium thiopental — to use for two convicted murderers scheduled to die later this month.

Like most of the 35 states that have the death penalty, Texas has relied on a three-drug cocktail: sodium thiopental, an anesthetic to render the inmate unconscious, and two drugs to stop the heart and lungs and cause death. Last month, the only American producer of sodium thiopental, Illinois-based Hospira Inc., announced it would stop selling the drug, which it planned to manufacture in an Italian plant, after Italian authorities wanted a guarantee that the drug would not be used in capital punishment.

The Texas Department of Criminal Justice is exploring its options, including what other states facing a similar shortage are doing, said Michelle Lyons, a department spokeswoman. But the drug alternatives are limited and would most likely still leave Texas reliant on nations that oppose executions.

Oklahoma and Ohio both turned to pentobarbital, a barbiturate similar to sodium thiopental. Oklahoma used it in its three-drug cocktail to execute John David Duty in December. Ohio plans to use one massive dose in its executions — a method similar to what veterinarians use to euthanize animals.

But pentobarbital is fraught with some of the same issues as sodium thiopental. The drug is only available from one company operating in the United States, Lundbeck Inc., based in Denmark, a country that also opposes the death penalty. Last month, Lundbeck asked Oklahoma and Ohio not to use the drug in executions. JoEllen Smith, a spokeswoman for the Ohio Department of Rehabilitation and Correction, said the state plans to use it anyway.

Unless Texas law is changed to allow for other methods of execution, the criminal justice department will have to continue its hunt for the anesthesia overseas, primarily in countries that abhor the death penalty. Dr. James F. Arens, a retired anesthesiologist who served as president of both the Texas and American Society of Anesthesiologists, said companies in the United States do not make the drugs because they have not been in high demand. Hospitals have used far less sodium thiopental in surgery since a newer, fast-acting drug, propofol, became available. (Michael Jackson died from an overdose of that drug.) And pentobarbital is rarely used in surgery. “No company is going to continue to manufacture something it can’t sell,” Arens said.

There is no science-approved approach to carrying out lethal injection, said Deborah W. Denno, a law professor at Fordham University and expert on the death penalty. Rather, most states came to their own consensus that the three-drug cocktail was the best method. The perception, she said, was that it is a more clinical method than others that the public found too gruesome and that have been phased out, like hanging or the gas chamber, which used chemicals similar to those the Nazis employed in death camps. The electric chair fell out of favor after reported instances in which the eyes of inmates popped out and at least one inmate's head burst into flames.

Although the courts, up to now, have rejected arguments that lethal injection is inhumane, Denno said some scientists question that verdict, and changing the drugs used based on availability without knowing how they will work is tantamount to experimentation. “You can’t continue do that with human beings and hope for the best,” she said.

There is, she said, one method that is quick, effective, affordable and does not depend on Europe: the firing squad. Since 1976, a firing squad has been used only three times, all in Utah. Although the state changed its death penalty law in 2004 to require lethal injection, it allowed Ronnie Lee Gardner — who was convicted of murder in 1985 when the firing squad was still used — to choose it. He was shot to death last summer. “It’s the most humane procedure,” Denno said. “It’s only because of this Wild West notion that people are against it.”

But Texas lawmakers are consumed with a budget crisis, and state Rep. Jerry Madden, R-Plano, said no one is talking about changing the method Texas uses for the death penalty. Asked whether Texas should consider changing the law to reduce its reliance on European nations opposed to capital punishment, Gov. Rick Perry said he would trust state corrections officials to find a solution to the drug shortage.