Executions

On July 8 U.S. District Court Judge Gregory Frost stayed the upcoming July 19 execution of Ohio inmate Kenneth Smith because of the state's inconsistent application of its lethal injection process. Judge Frost called the state's practice "haphazard," and said, "Ohio pays lip service to standards it then often ignores without valid reasons, sometimes with no physical ramifications and sometimes with what have been described as messy if not botched executions."  Smith's attorneys argued that Ohio does not follow its own execution procedures, straying from the required number of execution team members and failing to document the mixing of drugs. According to the warden of the Southern Ohio Correctional Facility, executions in January and May involved only one medical team member, rather than the required two.  Frost did not rule on the constitutionality of Ohio's death penalty statute, but held that Smith would likely prevail on a claim of unequal protection under the Fourteenth Amendment.  He concluded, "The perplexing if not often shocking departures from the core components of the execution process that are set forth in the written protocol not only offend the Constitution based on irrationality but also disturb fundamental rights that the law bestows on every individual under the Constitution, regardless of the depraved nature of his or her crimes."

Between January and the end of June 2011, there were 25 executions in 9 states.  During the same time period last year, there were 29 executions.  Of the executions this year, 8 were carried out using the drug sodium thiopental, while 17 involved a new drug, pentobarbital. Earlier in 2011, Hospira Inc., the sole U.S. manufacturer of sodium thiopental, announced that it would no longer manufacture the drug, forcing states to search for foreign sources or alternative drugs for their lethal injections.  Alabama, Arizona, Mississippi, Ohio, Oklahoma, Texas, and South Carolina have used pentobarbital instead of sodium thiopental in their executions in 2011. Ohio is the only one of those 7 states to use pentobarbital as the sole drug in its lethal-injection process.  In the first half of 2011, 18 clemencies have been granted, commuting the defendant's death sentence to life without parole. Fifteen of the commutations were in Illinois, where Governor Pat Quinn signed a bill repealing the state's death penalty. The repeal goes into effect today, Juy 1.  Seventy-six percent (76%) of the cases resulting in executions so far this year involved the murder of at least 1 white victim, even though generally whites are victims of murder less than 50% of the time.

Lundbeck Inc., a Danish pharmaceutical company that is the sole manufacturer of injectable pentobarbital used in the U.S., recently announced that it will impose tougher conditions on distributors in an effort to prevent the drug's use in executions. Lundbeck's Chief Executive, Ulf Wiinberg, said his company will be switching to the use of specialist wholesalers and imposing “end user clauses” designed to stop pentobarbital from being sold for use in executions. Wiinberg will also be writing to state officials warning that it is not safe to use the drug in untested ways, including in lethal injection protocols.  Wiinberg said, "We are willing to try to stop Nembutal’s (pentobarbital) misuse even if we can’t guarantee that it will necessarily work. Obviously we would like to do the right thing.” Early this year, departments of corrections in several states switched to using pentobarbital as part of a 3-drup protocol after another drug became unavailable. About a dozen inmates have been executed in the U.S. using this new drug in 2011, including three in Ohio, which uses a single lethal-dose of pentobarbital in its executions.  Oklahoma, Texas, South Carolina, Mississippi, Alabama, and Arizona have used pentobarbital as the first drug in a three-drug protocol this year.

The Arizona Supreme Court stayed the execution of Donald Beaty that was scheduled for May 25 after the state Department of Corrections tried to make last-minute changes to the execution protocol. On May 24 the U.S. Department of Justice told Arizona not to use its supply of sodium thiopental because it had been obtained illegally from a company in Great Britain.  Arizona's Attorney General filed notice with the Arizona Supreme Court stating that, to "avoid questions about the legality" of the drug, pentobarbital would be used in its place.  The Court issued the stay in order to give Beaty time to review the changes to the execution procedure and scheduled a hearing for May 25.  In 2010, Arizona purchased sodium thiopental, the anesthetic used in lethal injections, from Dream Pharma in England. The drug was used in the executions of Jeffrey Landrigan and Eric King, despite concerns about its legality. After the Drug Enforcement Administration seized imported supplies of the drug from five other states, lawyers for Mr. Beaty contacted the Department of Justice asking why Arizona's supply had not also been seized.  Six other states have already used pentobarbital in executions. Beaty's lawyer, Dale Baich, said he had repeatedly inquired about the legality of Arizona's drug: "I sent three letters to the DOJ and made calls to the DEA that were not returned," said Baich. "The question of whether Arizona legally imported the drug has now been answered." UPDATE: The Arizona Supreme Court lifted the temporary stay of execution, allowing it to go forward on the scheduled day, barring a reprieve from a federal court.