On March 1, Missouri’s supply of a key execution drug expired. The sole U.S. manufacturer has stopped making the drug, sending the state on a quest to find more. The federal government does not have any reserves and is currently undertaking a review of what they call a critical shortage.
As St. Louis Public Radio’s Julie Bierach reports, Missouri has another option. It could follow the lead of Ohio and Oklahoma and switch drugs.
On February 9, the Missouri Department of Corrections executed 47-year-old Martin Link by lethal injection. It would be the last time the state could use its supply of sodium thiopental, the first drug in the state’s three-drug lethal injection protocol. And it’s the important one. It’s the anesthetic that makes the execution constitutional by assuring it’s not “cruel and unusual.” The second drug is a paralytic and the third stops the heart. Even though there are no executions scheduled right now, legal experts agree executions in Missouri are “unofficially” on hold.
“They will not be able to execute anyone using the current three-drug regiment unless they find a supply.” – Tony Rothert
Tony Rothert is with the ACLU of Eastern Missouri. Through a public records request earlier this year he discovered that Missouri’s sodium thiopental supply was dwindling.
A European solution?
Missouri’s current position in not unique. In January, Missouri and 12 other states asked the Department of Justice to help identify sources for the drug, possibly from another country. But, Maya Foa with the London-based anti-death penalty group, Reprieve, says obtaining the drug from anywhere in Europe to use in executions will be difficult.
“Europe is now mobilized and most countries in Europe have been made aware of the issues and will be very very suspicious if they get any requests from the U.S.,” Foa said.
In November, Reprieve was successful in getting the U.K to impose a control order on sodium thiopental from the country. That means if a UK company wants to export the drug it has to prove that it’s exporting for legitimate medical purposes – not executions.
Exploring other options
Finding more sodium thiopental is not Missouri’s only option. It’s not even the best option, according to death penalty expert Paul Litton, who’s an associate law professor at the University of Missouri-Columbia. He’s currently co-chairing a committee reviewing Missouri’s death penalty for the American Bar Association. He says a Missouri law authorizes the director of the Department of Corrections to change the execution protocol to include the use of another drug.
“I do think that Missouri’s going to eventually follow the lead of Oklahoma and change to pentobarbital,” Litton said. “The states that are suing sodium thiopental from a foreign source. I think they’re going to be more susceptible to constitutional challenge then the states that are gonna change to pentobarbital.”
Like sodium thiopental, pentobarbital is a sedative. It’s used to treat epilepsy and insomnia. It’s also used by veterinarians to euthanize pets. And unlike sodium thiopental, it’s readily available and manufactured here in the U.S. by Illinois-based Lundbeck, Inc. In October, Oklahoma used it to execute John David Duty, and Ohio has begun using it in executions.
Where Missouri stands
Jeff Merrell is the prosecuting attorney for Taney County and he sits on the death penalty committee for the Missouri Association of Prosecutors. He says the organization doesn’t really have a stance on whether the state should pursue another source of sodium thiopental or use pentobarbital. He just hopes it doesn’t take too long to make a decision.
“It’s just the position of the prosecutors of Missouri that a resolution be reached as soon as it can so that we continue to move on toward putting an end to the wait for some of these cases,” Merrell said.
The Missouri Department of Corrections declined several attempts to be interviewed for this story. A spokesman did release a statement saying,“we are exploring the options available to us and we have no further comment at this time.”
Read a letter from the Department of Justice to states currently facing a sodium thiopental shortage below.