Out of lethal injection drugs and with three men who could have execution dates set soon, Georgia must figure out a way to restock its supply of pentobarbital, which the manufacturer refuses to sell for capital punishment.
“The vast number of states are facing a crucial shortage of lethal injection drugs,” said University of Georgia law professor Ron Carlson. “Sources are drying up and states are scrambling to figure out how to implement their death penalty laws.”
The shortage of drugs nationwide can be traced to political pressures on the drug manufacturers — all either based in or with facilities in other countries where sentiments are strongly against capital punishment.
Legal experts and activists expect the alternative to buying from a mass producer will be ordering from local compounding pharmacies where batches of the drug can be made on the spot and as needed.
“There is a sense that compounding pharmacies may be where states are turning,” said Richard Dieter, executive director of the Washington-based Death Penalty Information Center, which opposes the death penalty. “Big drug companies don’t want to be associated with this.”
But there could be legal and public relations problems with a local pharmacist making up a batch of lethal injection drug on a case-by-case basis.
“Its certainly invokes the image of the mad scientist mixing chemicals with the nefarious intention of taking human life, which certainly seems problematic for state government,” said Sara Totonchi, executive director of the Southern Center for Human Rights. “How do we know about the integrity of the compound? How do we know if the person being executed isn’t being put through unthinkable pain?”
Some of the areas ripe for litigation, Totonchi and other death penalty opponents say, are the skills of the pharmacists, the efficacy of the drugs that will have to be tweaked enough so as not to violate patents and the need for a doctor to write a prescription for a lethal injection drug which could violate American Medical Association rules.
“It reopens a whole new line of litigation around this issue. The state is going into uncharted waters,” said Georgia attorney Gerald Weber, who brought suits around the issue of doctors participating in lethal injections a few years ago.
So far, only South Dakota has carried out an execution using drugs made locally.
There are no executions scheduled in Georgia at this time. But on Tuesday the 11th U.S. Circuit Court of Appeals rejected a challenge from Warren Hill, who came within two hours of being executed in February for a 1990 beating death of a fellow inmate, and his execution warrant could be signed at any time if the U.S. Supreme Court does not step in. The U.S. Supreme Court has the final appeals of Robert Wayne Holsey — who murdered a Baldwin County deputy 1995 — and Marcus Wellons — who raped and strangled his 15-year-old Cobb County neighbor in 1989.
The state would be pressed if any of the three men at the end of their appeals have executions scheduled in the near future.
That’s why it’s important for the state to shield the identities of doctors, pharmacists or drug providers that could be involved with procuring lethal injection drugs, said State Rep. Kevin Tanner, R-Dawsonville. He sponsored the legislation to keep those identities secret, expecting the state will have to turn to a pharmacist.
“I can see it heading in that direction,” Tanner said.
The nationwide shortage of lethal injection drugs became a problem only in recent years when companies in other countries became concerned their products were being used in executions.
First the U.S. manufacturer of the sedative sodium thiopental — the first in a series of three drugs — stopped making it. Then the Danish company that made the replacement sedative, pentobarbitol, required U.S. suppliers to agree not to sell the drug if it is to be used in lethal injections. Then an Israeli pharmaceutical company stopped making the paralytic pancuronium bromide, the second drug Georgia and other states used in its three-drug cocktail; that is what led Georgia to go to a one-drug process even as that one drug was no longer available.
Twenty-four states still have three-drug protocols that start with pentobarbital.
Georgia and 10 other states have switched to a one-drug process. Missouri plans to use Propofol, the anesthetic said to have killed pop star Michael Jackson that is made by a German company. Arkansas has said it will use phenobarbitol, a sedative and anti-seizure drug that has not yet been used in an execution. The remaining 11 use pentobarbital, which they can’t buy now.
Georgia’s ability to procure lethal injection drugs may well lie in its ability to shield the public from those involved in the production of the drug.
“If we cannot protect the identities of these individuals, we may not be able to obtain drugs to carry out executions,” DOC attorney Robert Jones wrote in an email dated March 22, the day the Senate approved the change and four days before the House gave the bill its final approval.
About the Author
