Prison officials in two states have been forced to take dramatic measures in the past 24 hours because one of the drugs used to carry out executions by lethal injection is no longer manufactured in the United States.
The Texas Department of Criminal Justice said today that because its supply of sodium thiopenthal has expired, it will change its three-drug protocol. Effective immediately, pentobarbital will now be substituted for sodium thiopenthal, officials said.
Both drugs are used to induce a coma-like unconsciousness. They are normally followed up in Texas by pancuronium bromide, which paralyzes the inmate, and potassium chloride, which induces cardiac arrest.
Texas has executed more death row inmates than any other state. There are 337 inmates on death row there, according to the Death Penalty Information Center, which is opposed to the death penalty.
Meanwhile, the Georgia Department of Corrections was forced to turn over the state's entire supply of sodium thiopenthal to the federal Drug Enforcement Administration after the agency expressed concern that the state may have improperly imported the drug from a foreign supplier.
Confirming the seizure, a DEA spokesman said the agency acted because of "compliance-related issues" with the importation of the drug.
Georgia has no executions scheduled.
Of the 34 states that allow the death penalty, 31 use sodium thiopenthal.
The lone U.S. supplier of the drug stopped production in 2009, which caused states to scramble to find a new supplier or change their protocols.
Death row inmates and their lawyers have raised questions about whether the drug should be imported from foreign sources at all or whether states are allowing enough time to test new protocols.
Texas chose to change its protocol. Officials say the change will be in place for the April 5 scheduled execution of Cleve Foster. Foster was convicted and sentenced to death for the 2003 murder of Nyanuer "Mary" Pal. Foster's lawyer, Maurie Levin of the University of Texas Capital Punishment Center, is furious.
"Texas is rushing to carry out an execution using an entirely new protocol, but they refuse to fully disclose basic information, such as whether medical authorities were consulted regarding the incorporation of a new drug; the source of the pentobarbitol; and the training of personnel who will implement the new procedure for the first time," she said.
Richard Dieter, the executive director of the Death Penalty Information Center, said the shortage of the drug is causing a "period of flux" with a lack of any kind of national review.
Some states are using a three-drug protocol and others have changed to a one drug.
"We have some states using one drug, others sticking to three drugs," he said. "It's kind of a form of human experimentation as opposed to a more deliberative process with medical experts about what would be the most humane process."
The attorneys general of 13 states wrote a letter Jan. 25 to Attorney General Eric Holder asking for his "assistance" in identifying an approved source of the sodium thiopenthal or making supplies held by the federal government available to the states.
The questions surrounding sodium thiopenthal come at a time when other states are considering outlawing executions all together.
Illinois last week became the 16th state to abolish the death penalty. In making his decision, Gov. Pat Quinn said, "The evidence presented to me by former prosecutors and judges with decades of experience in the criminal justice system has convinced me that it is impossible to devise a system that is consistent, that is free of discrimination on the basis of race, geography or economic circumstance, and that always gets it right."
Quinn acted despite pleas from Lisa Madigan, Illinois attorney general, who wrote him a letter saying that she continued "to believe that the death penalty is an appropriate and just punishment when a defendant commits multiple murders or murders a victim in a particularly heinous manner or circumstances."
Seven states have had bills proposed this year to abolish the death penalty.