Texas has 317 convicted murderers on death row, but because of a company's decision last week to stop making the key drug for lethal injections, Texas only has enough of the potion to execute two.
Consequently, Texas and 32 other states will be watching closely as Ohio prepares to execute Johnnie Baston. They will be watching not only to see how well the substitute drug works, but how entangling the legal battle is going to be.
Baston, 36, convicted of killing a wig shop owner in 1994, is scheduled to arrive at the Southern Ohio Correctional Facility's "Death House"on March 10. If everything goes according to plan, he'll be strapped to a gurney, allowed to make a final statement, and injected with a dose of the powerful sedative pentobarbital.
The drug, chemically similar to a drug used to euthanize horses, is the latest flashpoint in the debate over the death penalty.
It has become the hastily chosen -- and critics say unproven -- successor to sodium thiopental, the workhorse of America's death chambers for over a decade which was unexpectedly discontinued last week.
A shortage of the drug has already disrupted executions in Arizona, California, Kentucky, and threatens to complicate executions at Texas' death house, the busiest in the country.
If death is one of life's inevitables, so are lawsuits when it comes to changing the way the death penalty is going to be administered.
"The risk is they've never used it before," said Tim Young, the Ohio public defender who Baston's lawyer. "It's an untested protocol and an untested drug. We've had three botched executions in this state already and now we're moving to something untried. There is a risk."
"We should very much expect lawsuits and legal challenges to specific executions," said Richard Dieter, executive director of the nonpartisan Death Penalty Information Center.
"More eleventh hour cases are going to occur. Every lawyer who has got a client is going to file. Every state uses sodium thiopental and is going to face this," Dieter said.
Thirty-five states administer the death penalty by lethal injection.
Ohio to Execute Killer With Substitute Drug
Baston will be the second person in the country to be executed with pentobarbital. The only other execution using the drug was carried out in Oklahoma in September when the drug was used as a temporary substitute.
Pentobarbital began looking like a permanent solution last week when Hospira, the company that manufactured sodium thiopental, halted production because of objections over its use in executions.
"Hospira had intended to produce [sodium thiopental] at its Italian plant," but Italian authorities had concerns about its use in capital punishment in the United States, Hospira said in a statement. Hospira also said it "never condoned" the use of the drug to execute prisoners.
"Given the issues surrounding the product… Hospira has decided to exit the market," the company said in a statement.
The immediate scramble for a method to execute death row inmates was evidenced this week when Georgia imported the old drug from an unregulated source in Britain, sparking a brief legal fight before the Supreme Court before Georgia was allowed to use the drug to execute a convicted murderer.
With sources of sodium thiopental drying up, the states that rely on lethal injection for executions are watching Baston's execution and the legal fight around it.
In most states the drug is the lethal part of a battery of drugs, administered as a final death blow following drugs intended to relax muscles and render the convict unconscious.
In Ohio, however, the inmate receives just one drug.
Ohio was able to change the protocol without legislation, said Ohio Department of Corrections spokesman Carlo Loparo. But in other states such a change could require lengthy procedures, further drawing out executions and raising greater questions about their legality.
Texas, which has the busiest death row in the country, expects to run out of its supply of lethal drugs in March.
"The supply expires in March, so we'll have to look to some sort of alternative," said Texas Department of Corrections spokesman Jason Clarke. "We'll likely end up changing the drug. We'll look to what other states use successfully."