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July 11, 2012

Drug scarcity, not litigation, has Texas moving to one-drug execution protocol

The last decade has seen huge (and hugely expensive) constitutional litigation in state and federal courts throughout the nation concerning three-drug lethal injection execution protocols.  Capital defendants in these cases often claimed they hoped only to push states to adopt a one-drug protocol rather than give up executions altogether; rarely did they succeed in this mission, though often they did managed to achieve (their true goal of?) a delay in a scheduled execution.  This lethal injection litigation twice made it to the Supreme Court docket, though the SCOTUS rulings in Hill and Baze did relative little to clarify or conclude (still on-going) constitutional litigation over three-drug execution protocols.

Against the backdrop of this litigation history, I find more than a little irony in various aspects of this new AP story coming from the state with the most active death chamber.  The story is headlined "Texas switches to 1-drug execution due to shortage," and here are the basics:

Texas, the nation's most active death penalty state, announced Tuesday that it would become the latest to switch to single-drug executions amid a drug shortage that has left states scrambling for acceptable alternatives.

The Texas Department of Criminal Justice said it will begin using a single dose of the sedative pentobarbital to carry out death sentences. It had been using that drug in combination with two others, but its supply of one of the other drugs expired.

Texas began using pentobarbital last year after another drug, sodium thiopental, became unavailable when its European supplier bowed to pressure from death penalty opponents and stopped making it. But pentobarbital is now in short supply after its Danish manufacturer said it would try to prevent its use in executions.

An Oklahoma inmate asked a federal court on Tuesday to halt his upcoming execution because that state has only one dose of pentobarbital left. A lawyer for Michael Hooper said Oklahoma has no backup plan if the drug fails to render Hooper unconscious, and that creates a risk of cruel and unusual punishment.

Texas officials said in May that they have enough doses of pentobarbital to carry out 23 executions. No one has been executed in the state since....

Four other states - Arizona, Idaho, Ohio and Washington - have used a single drug to carry out executions, according to the Death Penalty Information Center. Ohio was the first to use just pentobarbital, during a March 2011 execution. Other states, such as Missouri, plan to use propofol, the anesthetic blamed for Michael Jackson's death, to do single-drug executions.

Death penalty opponents claim single-drug executions may be less humane. They point to an April execution in Arizona, where an inmate shook for several seconds after receiving a lethal dose of pentobarbital. The drug was used by itself in that case.

Richard Dieter, executive director of the Washington-based Death Penalty Information Center, said three-drug cocktails kill quicker than a single anesthetic like pentobarbital. "The person still goes to sleep and gradually loses mental capacity and dies, but it may take a slightly longer time," Dieter said. "I think the idea originally was to cause death quickly, but you needed the anesthetic to make those next two drugs painless."

Texas has carried out more executions than any other state, 482 since the state reinstated capital punishment in 1982. Its next scheduled lethal injection is July 18, when Yokamon Hearn is set to die for killing a 23-year-old stockbroker from Plano, north of Dallas, in 1998.

Hearn's lawyer, Richard Burr, said he was studying the switch to a single drug and hadn't decided yet whether to file an objection to it. Texas has nine executions, including Hearn's, scheduled between now and mid-November. Clark said switching to a single-drug method now will ensure that all can be carried out as planned.

Dieter said Texas' switch might influence other states and provide more evidence for whether a one-drug procedure works better than previous methods. "Either way, it provides more evidence that this is or is not the way to go," Dieter said. "Everybody thinks of Texas as the leading execution state. It's a question of numbers."

July 11, 2012 at 02:09 PM | Permalink


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I sometimes almost wonder if having safe, humane, and antiseptic executions works against folks who opposed the death penalty. Like, if we just bashed people's heads in with a big rock in the public square if more people would probably realize that maybe the DP isn't such a hot idea. Maybe that effect would be multiplied if people were drafted at random to act as executioners.

Posted by: Guy | Jul 11, 2012 4:01:54 PM


I dunno, early execution techniques were all about the community hurling their condemnation at the offending party. I honestly doubt we've come all that far. Get a group together and I think it would still be pretty easy to carry out a stoning, so long as it were state sanctioned.

Now, it probably would be quite a bit harder if you were to randomly draft just a few people to perform a modern sterile execution.

Posted by: Soronel Haetir | Jul 11, 2012 4:24:19 PM

Some haven't come that far. Take a trip to Afganistan.

Posted by: Traveler | Jul 11, 2012 4:28:18 PM


I was thinking specifically in terms of the US, not humanity as a whole.

Posted by: Soronel Haetir | Jul 11, 2012 6:07:30 PM

I have proposed a solution. Have chem majors make more of the products in prison industries. If the FDA objects, they do not have jurisdiction since it is not a health product but a poison.

Posted by: Supremacy Claus | Jul 12, 2012 6:27:32 AM

"Dieter said Texas' switch might influence other states and provide more evidence for whether a one-drug procedure works better than previous methods."

Well, there's always that.

The basic concern here should be that some minimum level of care and prevention of unnecessary pain (what that means, of course, is very debatable) is involved when lethal injections are used. The many permutations of the exercise are clear. States using one drug protocols for pragmatic reasons is just one more example.

Posted by: Joe | Jul 12, 2012 9:29:21 AM

What's wrong with hanging? It was good enough for Saddam Hussein. Plus, it's cheap, and it is highly unlikely that there will be a shortage of rope any time soon.

Posted by: MBC | Jul 15, 2012 7:37:44 PM

I'm interested in the civil/contract legal issues involved in a manufacturer trying to restrict use of its product after it is injected into the stream of commerce.

Can the Danish company include contractual terms in all of its sales that forbid further sale for the purpose use in executions? I would think so.

But how do they control downstream distribution? Can they require that the re-seller also include a similar term in the second sale contract? What about the third/fourth/fifth sale? If the fifth person in line then sells to Texas for executions, is there any way the Danish company could still have standing to sue for damages? Could all of these contracts specifically recite that the Danish company is a third-party beneficiary of the sale-restriction clause?

With land, you could have a covenant, and I believe under some circumstances it would run with the land (rusty on property law), at least for a while (maybe not in perpetuity). But I think it is trickier with chattels/non-real property.

Posted by: Anon | Jul 20, 2012 3:49:23 PM

Can the Danish company include contractual terms in all of its sales that forbid further sale for the purpose use in executions?

Posted by: Lakers Snapback | Sep 11, 2012 8:15:16 PM

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